1/5 Update: In the months since Berg filed his complaint, a variety of theories have been developed by others, including some litigants, to argue that Obama is not eligible for the Presidency.
The one that seems to be most popular at the moment is that Obama does not qualify under the Constitution, Article II, Section 1 Natural Born Citizen clause, because his father was not a U.S. Citizen - i.e., regardless of whether a person is born in the United States, they are not a "natural born citizen" if one of their parents is a non-US citizen. This argument was apparently first developed by New Jersey litigant Leo C. Donofrio, and has since been promulgated by others. Some (but not all) of those making this argument generally accept that Obama was born in Hawaii, but argue that he still is not a "natural born citizen" because his father was a U.K. citizen.
For a sampling of such arguments, see, e.g., Natural Born Citizen (Leo C. Donofrio's blog) and TheObamaFile.com.
For a sampling of some refutations of such arguments, see, e.g., ObamaConspiracy.org and YesToDemocracy.com.
Because we've received multiple comments regarding this argument, we decided to address it, at least summarily for now. (We hope to supplement this information, as time allows, in the near future.)
1/7 Update: Because the amount of information on this issue found and/or received from commenters has rather exploded, we have reorganized the information by the categories listed below. For purposes of this list,
"Primary Source" means "the law" -- i.e., asource with the force of law (e.g., statute, case, AG opinion, etc.).
"Secondary Sources" means an exposition on the law. Certain secondary sources, such as Blackstone, Story, Kent and other leading legal scholars have more "force" with courts/are relied upon by courts regularly. Other secondary courses include law review articles, books, etc. discussing the law and/or blogs and the like discussing the law.
Additionally, we modified the "highlighting scheme" as follows:
Text addressing the concept of "natural born citizenship" based on the child's place of birth (jus soli) is highlighted in green.
Text addressing the concept of "natural born citizenship" based on the child's parent's citizenship (jus sanguinis) is highlighted in red.
TABLE OF CONTENTS
1. PRIMARY SOURCES.
"The law" -- i.e., asource with the force of law (e.g., statute, case, AG opinion, etc.).
(a) Primary Sources - Presidential Eligibility and "Natural Born Citizen".
Lynch v. Clarke (N.Y. 1844). (expressly stating that person born in US to non-citizen parents is eligible for Presidency)
(b) Primary Sources - "Natural Born Citizen" Generally.
(i) Pre-1868 Primary Sources - Natural Born Citizen Generally (Pre-14th Amendment Adoption)
Lynch v. Clarke (N.Y.1844). (location of birth; expressly rejects citizenship by parentage argument)
Munro vs. Merchant (N.Y. 1858). New (1/8)
United States v. Rhodes (Ky. 1866). (location of birth). New (1/8)
Opinion of Attorney General Bates on Citizenship (Non-whites) (1862). (location of birth; expressly rejects citizenship by "heredity"). New (1/8)
Opinion of Attorney General Bates on Citizenship (Non-citizen Parents) (1862). (location of birth).
(ii) Post-1868 Primary Sources - Natural Born Citizen Generally (Post-14th Amendment Adoption - reverse chron order)
Perkins v. Elg (U.S. 1939). (location of birth).
United States v. Wong Kim Ark (U.S. 1898). (location of birth; expressly rejects citizenship by parentage argument).
Town of New Hartford v. Town of Canaan (Ct. 1886). (location of birth; expressly rejects citizenship by parentage argument). New (1/8)
In Re Look Tin Sing (Fed. Cir. (Ca.) 1884). (location of birth). New (1/8)
Elk v. Wilkins (U.S. 1884). (location of birth). New (1/8)
Minor v. Happersett (U.S.1874). (recognizes citizenship by parentage position as possible; location only, where born to non-citizen parents "doubful"). New (1/8)
See Also... (references to additional primary sources referenced in other materials, but not yet excerpted.)
2. SECONDARY SOURCES
An exposition on the law -- i.e., a source discussing what the law is, or what the law should be. We've attemted to, in the first instance, organize these sources based on relative "authority" - i.e., the past and/or present likelihood of reliance upon the source. Each subection concludes with a "See also" section re: sources referenced in materials, but not (yet) excerpted.
(a) Secondary Sources - Treatises/Authorities. (including Official Gov't Statements)
(i) Treatises/Authorities from Pre-1789 (Pre-US Constitution)
Vattel, THE LAW OF NATIONS OR THE PRINCIPLES OF NATURAL LAW (1758) (citizenship by parentage).
Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND (1765) (location of birth, child born in England to alien parents is English subject).
See Also... (References to additional Treatises/Authorities, pre-1789; under construction)
(ii) Treatises/Authorities from 1789-1868 (Pre-14th Amendment).
Tucker, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA (1803). (location of birth).
Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829). (location of birth, even if parent is non-citizen).
Kent, COMMENTARIES ON AMERICAN LAW (1826-30). (location of birth).
Story, COMMENTARIES ON THE CONSTITUTION (1833).
Hurd, THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES (1858-1862). (location of birth). New (1/8)
Paschal, THE CONSTITUTION OF THE UNITED STATES DEFINED AND CAREFULLY ANNOTATED (1868) (location of birth). New (1/8)
See Also... (References to additional Treatises/Authorities, 1789-1868).
(iii) Treatises/Authorities from 1868-1950 (Post-14th Amendment).
McClane: Letter from Mr.McLane (US) to Mr. Flourens (France), in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, Part 1 (1888). (re: natural born citizen "with French father") New (1/8)
Wright, AN EXPOSITION ON THE CONSTITUTION OF THE UNITED STATES (31st Ed.) (1888) (citizenship by parentage and by location of birth). New (1/8)
Kent (Browne, Ed.), COMMENTARIES ON AMERICAN LAW, William Hardcastle Browne Ed. (1894). (location of birth). New (1/8)
U.S. Department of State: Citizenship of the United States, Expatriation, and Protection Abroad (1904)
McLaughlin, CYCLOPEDIA OF AMERICAN GOVERNMENT (1914), VOL II. (location of birth, even if parent is non-citizen). New (1/8)
See Also ... (References to additional Treatises/Authorities, 1868-1950)
(iii) Treatises/Authorities from 1960-Present (Modern Era) (reverse chron order).
Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005). (location of birth).
Dellinger (AAG), Statement before the Subcommittees on Immigration and Claims and on the Constitution of the House Committee on the Judiciary (Dec. 13, 1995). (location of birth).
See Also ... (References to additional Treatises/Authorities, 1950-Present)
(b) Secondary Sources - Other.
(i) Other Secondary Sources - Pre-1789. (under construction)
(ii) Other Secondary Sources - 1789-1868. (under construction)
(iii) Other Secondary Sources - 1868-1960
Minor, Address on the Citizenship of Individuals ..., in PROCEEDINGS OF THE AMERICAN SOCIETY FOR INTERNATIONAL LAW (1910). (location of birth, even if parent is non-citizen). New (1/8)
Freedman, Presidential Timber: Foreign Born Children of American Parents, 35 Cornell.Q. 357, 364 (1950). (location of birth).
(iv) Other Secondary Sources - 1960-Present (reverse chron order).
L. Freedman, An Idea Whose Time Has Come--The Curious History, Uncertain Effect, and Need for Amendment of the "Natural Born Citizen" Requirement for the Presidency, 52 St. Louis U. L.J. 137, 143 (2007) (location of birth).
Duggin & Mary Beth Collins, 'Natural Born' in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution's Presidential Qualifications Clause and Why We Need to Fix It, 85 B.U. L. Rev. 53, 90-91 (2005). (location of birth).
Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 Gonz. L. Rev. 349, 359-63 (2000-01). (location of birth; discusses Wong Kim Ark's rejection of citizenship by parentage).
Smith, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1999). (location of birth; expressly rejects citizenship by parentage was accepted by Founding Fathers).
Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881(1988). (location of birth).
Medina, The Presidential Qualification Clause in this Bicentennial Year: The Need to Eliminate the Natural Born Citizen Requirement, 12 Okla. City U.L. Rev. 253, 258-261 (1987). (location of birth).
Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1, at 7-8 (1968). (ocation of birth).
McElwee, unpublished article reprinted in 113 Cong. Rec. 15,875 at 15,876 (1967).(location of birth).
See Also ... (References to additional other secondary sources - 1868-Present)
| Primary Sources - Presidential Eligibility and "Natural Born Citizen" |
| U.S. Constitution |
"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; neither 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."
Relevant Excerpt:
Cornell Legal Information Institute.
Source/Notes:
| Lynch v. Clarke, 3 N.Y.Leg.Obs. 236, 1 Sand. Ch. 583 (1844) |
"The defendant, Julia Lynch, was born in the City of New York in 1819, of alien parents, during their temporary sojourn in that city. She returned with them the same year, to their native country, and always resided there afterwards. It was held that she was a citizen of the United States." [NYLO at 236].
Summary of Case:
"5. It is a necessary consequence, from what I have stated, that the law which had prevailed on this subject, in all the states, became the governing principle or common law of the United States ....[I]t follows, in the absences 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. ... If there had been any diversity on the subject in the state laws ... it is reasonable to believe that the framers of the constitution would have borne in mind, and enacted a uniform rule, or authorized Congress to establish one. The entire silence of the constitution in regard to it furnishes a strong confirmation, not only that the existing law of the states was entirely uniform, but that there was no intention to abrogate or change it. The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. "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," ... The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. The position would be decisive in his favor that by the [247] rule of the common law, in force when the constitution was adopted, he is a citizen." [NYLO at 246-47; italics in original].
Excerpt:
Lynch v. Clarke, 3 N.Y.Leg.Obs. 236, 1 Sand. Ch. 583 (1844), ("NYLO") at page 236 (quoted summary of case), and 246 (quoted excerpt) (for copy of opinion in full book, as published on Google Books, click here).
Source/Notes: Note: The quoted excerpt is dicta, which means that parties and courts may rely upon it; however, no court (including the same NY court) is bound to follow it.
| Pre-1868 Primary Sources - "Natural Born Citizen" Generally |
| Lynch v. Clarke, 3 N.Y.Leg.Obs. 236, 1 Sand. Ch. 583 (1844). |
"The defendant, Julia Lynch, was born in the City of New York in 1819, of alien parents, during their temporary sojourn in that city. She re-turned with them the same year, to their native country, and always resided there afterwards. It was held that she was a citizen of the United States." [NYLO at 238.]
Summary of Case:
"It is an indispensable proposition, that by the rule of common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States and, indeed, before the discovery of America by Columbus. By the common law, all persons born within the ligeance of the crown of England, were natural born subject, without reference to the status or condition of their parents. So if a Frenchman and his wife, came to England, and had a son during their stay, he was a liege man. This was settled law in the time of Littleton, who died in 1492. And its uniformity through the intervening centuries may be seen by reference to the authorities, which I will cite without further comment [list of citations to cases/authorities].
Excerpt:
Mr. Chitty [one of authorities cited], says that by the common law, all persons born out of the king's dominion and allegiance were deemed aliens; and whatever were the situation of his parents, the being born within the allegience of the king, constituted a natural born subject. He states no exception to the latter proposition; although there are some exceptions to the former, in favor of children of British subjects who are born in foreign countries...." [NYLO at 238.]
***
"At and before the adoption of the Federal Constitution, the case was undoubtedly different. ... Foreigners arriv[ing] here intermediate the Declaration and the adoption of the constitution, became citizens or continued aliens, according to the laws of the several states where they resided; and the children of aliens born here during that interval, became citizens of those states, because, as will presently be shown, the common law was in that respect, the law of all the states. [NYLO at 241.]
***
[after discussion of common and statutory law in colonies during pre-Constitution period]: "It may then be safely assumed,
that at [244] the Declaration of Independence, by the law of each and all the thirteen states, a child born within their territory and liegeance respectively, became thereby a citizen of the state of which he was a native.This continued unchanged to the time when our National Constitution went into full operation. There is no evidence of any alteration of the rule in any of the states during the period that intervened; and the references which will be made under another head, show conclusively that there had been no intermediate change to their policy." [NYLO at 243-44.]
***
"In regard to the effect of birth upon the right of citizenship, it is my duty not to establish the rule of law for the first time, but to ascertain a rule which has been in force from the era of the Federal Constitution, and which has affected the rights of persons and property constantly from that period to the present. Were this, however, to be determined solely on its intrinsic propriety and adaptation to our circumstances, I am not sure that any rule different from that of the common law, ought to be adopted in our country. 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. If we depart from that, and adopt the rule of some of the contintental nations, we have two more remote and difficult tests introduced. We are to ascertain first, by evidence of facts removed one generation from the time of the inquiry, the status or citizenship of the parents at the time of the birth of the propositus; and next, the election or intention of the propositus himself, in reference to his adoption of the country where he was born, or that of which his parents were citizens. And oftentimes, as in this case, the question will arise, before he attains to the age of election. In harmony with the certainty [248] of the common law rule respecting natives born, are our statutory provisions for the admission of aliens to the rights of citizenship. Such admission is a judgment of a court of record. Thus in almost every instance, we have an unerring guide or test, capable of ready investigation and authentication. The exceptions are the children of ambassadors, (who are deemed to be born within the allegjance of the sovereign represented,) and the children of our own citizens born abroad. ..... [NYLO at 247-48.]
***
"6. Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegience of the United States, whatever were the situation of his parents, is a natural born citizen. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this case, and so far I have been able to ascertain, it never has been expressly decided in any of the courts of the respective states, or of the United States. This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common law rule was the law of the land. This inference is confirmed and the position made morally certain, by such legislative, judicial, and legal expositions as bear upon the question. Before referring to those, I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country does itself constitution citizenship. ... The universality of the public sentiment in this instance, is a part of the historical evidence of the state and progress of the law on the subject. It indicates the strength and depth of the common law principle, and confirms the position that the adoption of the Federal Constitution wrought no change in that principle." [NYLO at 250.]
Lynch v. Clarke, 3 N.Y.Leg.Obs. 236, 1 Sand. Ch. 583 (1844), ("NYLO") at pages noted above. (For copy of opinion in full book, as published on Google Books, click here.)
Source/Notes:
| Munro vs. Merchant (N.Y. 1858), as reported in Oliver Lorenzo Barbour, REPORTS OF CASES IN LAW AND EQUITY IN THE SUPREME COURT OF THE STATE OF NEW YORK, Vol. 26 (1858), at 383 |
Generally, this was a property case (i.e., whether a person could retain property). However, both parties argued that the other was not a citizen.
Summary of Case: [400]
Excerpts:
It is further contended, on the part of the defendant, that the plaintiff himself is an alien. He was born in Ballston Spa, in this state, while his father was a resident of Canada, and returned to his father's domicil, with his mother, within a year after his birth. His mother was temporarily there--without any actual change of residence, either on her part or that of his father. It is argued that, at common law, a natural born subject was one whose birth was within the allegiance of the king. (Bac. Ab. tit. Alien, A. Com. Dig. A. and B. 7 to 18. Bl. Com. 336, 74.) The cases of children of ambassadors, born abroad, and of children born on English seas were considered exceptions. Chancellor Kent, in his commentaries, defines a native born citizen to be a person born within, and an alien one born out of, the jurisdiction of the United States. (2 Kent's Com. 37-50.) In Lynch v. Clarke, (1 Sand. Ch. R. 583,) the question was precisely as here, whether a child born in the city of New York of alien parents, during their temporary sojourn there, was a native born citizen or an alien; and the conclusion was, that being born within the dominion and allegiance of the United States, he was a native born citizen, whatever was the situation of the parents at the time of the birth. That case, if [401] law, would seem to be decisive of the present question. But, admitting the plaintiff to be an alien, the cases already cited show that the terms "heirs or assigns," in the 9th article of the treaty, is not to be confined to the immediate descendants, but is to be extended indefinitely till the title comes to a citizen.
| Attorney General Edward Bates, Opinion on Citizenship (Non-Whites) (1862) |
Question presented: ""Are colored men citizens of the United States, and therefore competent to command American vessels?" The question would have been more clearly stated if, instead of saying are colored men citizens, it had been said, can colored men be citizens of the United States; for within our borders and upon our ships, both of war and of commerce, there may be colored men, and white men, also, who are not citizens of the United States. In treating the subject I shall endeavor to answer your question as if it imported only this: Is a man legally incapacitated to be a citizen of the United States by the sole fact that he is a colored, and not a white man ?" [1]
Summary of Case: [8]
Excerpts:
"We have natural born citizens, (Constitution, article 2, § 5,) not made by law or otherwise, but born. And this class is the large majority; in fact, the mass of our citizens; for all others are exceptions, specially provided for by law. As they becanle citizens in the natural way, by birth, so they remain citizens during their natural lives, unless, by their own voluntary act, they expatriate themselves and become citizens or subjects of another nation. For we have no law (as the French have) to decitizenise a citizen, who has become such either by the natural process of birth, or by the legal process of adoption. And in this connection the Constitution says not one word, and furnishes not one hint, in relation to the color or to the ancestral race of the " natural born citizen." Whatever may have been said, in the opinions of judges and lawyers, and in State statutes, about negroes, mulattoes, and persons of color, the Constitution is wholly silent upon that subject. The Constitution itself does not make the citizens, (it is. in fact,made by them.) It only intends and recognizes such of them as are natural—home-born—and provides for the naturalization of such of them as were alien—foreign-born—making the latter, as far as nature will allow, like the former. ..."
[12]
"As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we enjoy than "the accident of birth"—the fact that we happened to be born in the United States. And our Constitution, in speaking of natural lorn citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.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.)
[13]
"In the United States it is too late now to deny the political rights and obligations conferred and imposed by nativity for our laws do not pretend to create or enact them, but do assume and recognize them as things known to all men, because pre-existent and natural; and therefore things of which the laws must take cognizance. Acting out this guiding thought, our Constitution does no more than grant to Congress (rather than to any other department) the power "to establish a uniform rule of naturalization." And our ]aws made in pursuance thereof indue the made citizen with all the rights and obligations of the natural citizen. And so strongly was Congress impressed with the great legal fact that the child takes its political status in the nation where it is born, that it was found necessary to pass a law to prevent the alienage of children of our known fellow-citizens who happen to be born in foreign countries. The act of February 10, 1855, 10 Statutes, 604, provides that "persons," (not white persons,) '' persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, That the rights of citizenship shall not descend to persons whose fathers never resided in the United States."Sec. 2. And be it further enacted, That any woman who might law-[14] fully be naturalized under the existing laws, married, or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen."
But for that act, children of our citizens who happen to be born at London, Paris, or Rome, while their parents are there on a private visit of pleasure or business, might be brought to the native home of their parents, only to find that they themselves were aliens in their fathers' country, incapable of inheriting their fathers' land, and with no right to demand the protection of their fathers' government.
That is the law of birth at the common law of England, clear and unqualified; and now, both in England and America, modified only by statutes, made from time to time, to meet emergencies as they arise.
I have said that, prima facie, every person in this country is born a citizen; and that he who denies it in individual cases assumes the burden of stating the exception to the general rule, and proving the fact which works the disfranchisement: There are but a few exceptions commonly made and urged as disqualifying facts. I lay no stress upon the small and admitted class of the natural born composed of the children of foreign ministers and the like ...."
[16]
"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.In discussing this subject it is a misleading error to fail to mark the natural and characteristic distinction between political rights and political powers. The former belong to all citizens alike, and cohere in the very name and nature of citizenship. The latter (participation in the powers of government by voting and exercising office) does not belong to all citizens alike, nor to any citizen, merely in virtue of citizenship. His power always depends upon extraneous facts and superadded qualifications; which facts and qualifications are common to both citizens and aliens.
In referring to the authorities commonly adduced by those who deny the citizenship of colored people, I do not pretend to cite them all, but a few only of such as I believe to be most usually relied upon. And I will not trouble you with a detailed examination of the reasoning employed in each case, for I have already stated my own views of the principles and laws involved in the question; and where they conflict with the arguments upon which the contrary opinion is founded I still adhere to my own. ..."
Attorney General Edward Bates, Opinion of Attorney General Bates on Citizenship (1852).
Source/Notes: Note: AG Opinions have precedential value - i.e., parties and courts may elect to rely upon them. However, the court is not bound to follow them.
| Attorney General Edward , Opinion on Citizenship of Children Born in the United States of Alien Parents (1862) |
"A child born in the United States of alien parents, who have never been naturalized, is, by the fact of birth a native-born citizen of the United States, entitled to all the rights and privileges of citizenship."
Summary of Case:
"I have the honor to acknowledge the receipt of your letter of the 14th ult., in which you request my official opinion on the question, whether a child born in the United States, whose parents are aliens, who have never been naturalized, can, without naturalization, be considered a citizen of the United States.
Excerpt:
In my letter to you of the 6th ult., concerning the case of Mrs. Preto and her daughter, I had occasion to express the opinion that the daughter of an unnaturalized Spanish father, and of a native-born American mother, born in this country, but afterwards removed with her parents to Spain, where her father died, was a native-born American citizen, fully entitled to the protection of her country. The question now presented is of somewhat broader scope, but I do not think that the variant fact which it involves, viz: that both the parents are unnaturalized aliens, at all distinguishes it, in principle, from the question then considered. I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship. I might sustain this opinion by a reference to the well settled principle of the common law of England on this subject; to the writings of many of the earlier and later commentators on our Constitution and laws; to the familiar practice and usage of the country in the exercise of the ordinary rights and duties of citizenship; to the liberal policy of our Government in extending and recognizing [329] these rights, and enforcing these duties; and, lastly, to the dicta and decisions of many of our national and State judicial tribunals. But all this has been well done by Assistant Vice Chancellor Sandford, in the case of Lynch vs. Clarke, (1 Sand. Ch. Rep., 583,) and I forbear. I refer to his opinion for a full and clear statement of the principle, and of the reasons and authorities in its support.
Of course you will understand that I do not affirm the rule in such exceptional cases as the birth of the children of foreign ambassadors and the like."
Citizenship of Children Born in the United States of Alien Parents, 10 U.S. Op. Atty. Gen. 328, 1862 WL 1393 (U.S.A.G.), available on Westlaw (paid subscription).
Source/Notes: Note: AG Opinions have precedential value - i.e., parties and courts may rely upon them. However, courts are not bound by them.
| United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866) |
under construction
Summary of Case:
"The Act of Congress confers citizenship. Who are citizens, and what are their rights? The Constitution uses the words "citizen" and '"natural-born citizens;" but neither that instrument nor any Act of Congress has attempted to deûne their meaning. British jurisprudence, whence so much of our own is drawn, throws little light upon the subject. . . .
Excerpt: "All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. .Such is the rule of the common law, and it is the common law of this country, as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. 2 Kent Com. 1 ; Calven's Case, 7 Coke, 1 ; 4 Black. Com. 366 ; Lynch v. Clark, 1 Sandf. Ch. 139.
The common law has made no distinction on account of race or color. None is now made in England, nor in any other Christian country of Europe.
The fourth of the Articles of Confederation declared that the " free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the United States," &c. On the 25th of June, 1778, when these Articles were under consideration by the Congress, South Carolina moved to amend this fourth Article by inserting after the word " free," and before the word "inhabitants," the word " white." Two States voted for the amendment and eight against it. The vote of one was divided. Scott v. Sanford, 19 How. 575. When the Constitution was adopted, free men of color were clothed with the franchise of voting in at least five States, and were a part of the people whose sanction breathed into it the breath of life. Scott v. Sanford, 19 How. 573 ; State \. Manuel, 2 Dev. & Batt. 24, 25.
"'Citizens' under our Constitution and laws means free inhabitants born within the United States or naturalized under the laws of Congress." 1 Kent Com. 292, note.
We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."
As quoted in James Bradley Thayer, CASES ON CONSTITUTIONAL LAW - Part 2 (1894), at p510.
Source/Notes:
| See Also ... (References to Additional Primary Sources - Pre-1868) |
--- THE FOUNDERS' CONSTITUTION lists several more cases, etc., here.
--- " Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 119 (1804) (presuming that all persons born in the United States were citizens thereof)." (as cited in Walter Dellinger (AAG), Statement before the Subcommittees on Immigration and Claims and on the Constitution of the House Committee on the Judiciary (Dec. 13, 1995) ("Dellinger Statement").
--- "McCreery v. Somerville, 22 U.S. (9 Wheat.) 354 (1824) (in determining title to land in Maryland, Court assumed that children born in the state of an alien were native-born citizens of the United States)." (as cited in Dellinger Statement, FN 8).
| Post-1868 Primary Sources - "Natural Born Citizen" Generally |
| Perkins v. Elg, 307 U.S. 325 (1939) |
"The question is whether the plaintiff, Marie Elizabeth Elg. who was born in the United States of Swedish parents then naturalized here, has lost her citizenship and is subject to deportation because of her removal during minority to Sweden, it appearing that her parents resumed their citizenship in that country but that she returned here on attaining majority with intention to remain and to maintain her citizenship in the United States." [327]
Summary of Case:
"First. On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866, [329] 14 Stat. 27; Fourteenth Amendment, § 1; United States v. Wong Kim Ark, 169 U. S. 649. In a comprehensive review of the principles and authorities governing the decision in that case -- that a child born here of alien parentage becomes a citizen of the United States -- the Court adverted to the "inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship." United States v. Wong Kim Ark, supra, p. 169 U. S. 668. As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality. And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law on the resumption of that citizenship by her parents does not compel the conclusion that she has lost her own citizenship acquired under our law. As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles.
Excerpt:
Second. It has long been a recognized principle in this country that, if a child born here is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that, on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties."
***
[350]
"We conclude that respondent has not lost her citizenship in the United States and is entitled to all the rights and privileges of that citizenship.
Fifth. The cross-petition of Miss Elg, upon which certiorari was granted in No. 455, is addressed to the part of the decree below which dismissed the bill of complaint as against the Secretary of State. The dismissal was upon the ground that the court would not undertake by mandamus to compel the issuance of a passport or control by means of a declaratory judgment the discretion of the Secretary of State. But the Secretary of State, according to the allegation of the bill of complaint, had refused to issue a passport to Miss Elg "solely on the ground that she had lost her native born American citizenship." The court below, properly recognizing the existence of an actual controversy with the defendants [page 350] ..... declared Miss Elg "to be a natural born citizen of the United States," and we think that the decree should include the Secretary of State as well as the other defendants. The decree in that sense would in no way interfere with the exercise of the Secretary's discretion with respect to the issue of a passport, but would simply preclude the denial of a passport on the sole ground that Miss Elg had lost her American citizenship.
The decree will be modified accordingly so as to strike out that portion which dismisses the bill of complaint as to the Secretary of State, and so as to include him in the declaratory provision of the decree, and as so modified the decree is affirmed.
Modified and affirmed."
Perkins v. Elg, 307 U.S. 325 (1939) (Justia.com) (footnote references omitted), at 327 (summary of case), and 328-29 (quoted excerpt).
Source/Notes:
| United States v. Wong Kim Ark, 169 U.S. 649 (1898) |
Plaintiff, born in San Franscisco to Chinese parents, sued after being denied reentry into the US. Held: "A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution..."
Summary of Case:
"The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States."
Excerpts:
***
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. ...
***[Discussion of pre-Revolutionary period British law] ***
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
***[Discussion of early US caselaw on issue] ***
"That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583."
***[Continued discussion of early US caselaw] ***
"IV. It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations."
***[Discussion of early international law] ***
"There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion."
***[Discussion of right of nations to establish own laws, and of history of US naturalization laws] ***
"So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents.
Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [675] Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.
V. In the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms."
***[Discussion of passage of 14th Amendment, and cases interpreting it] ***
"The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country."
***[Discussion of exceptions to rule that place of birth determines citizenship] ***
"The words "in the United States, and subject to the jurisdiction thereof" in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words "within the limits and under the jurisdiction of the United States," and the converse of the words "out of the limits and jurisdiction of the United States" as habitually used in the naturalization acts. This presumption is confirmed by the use of the word "jurisdiction" in the last clause of the same section of the Fourteenth Amendment, which forbids any State to "deny to any person within its jurisdiction the equal protection of the laws." It is impossible to construe the words "subject to the jurisdiction thereof" in the opening sentence, as less comprehensive than the words "within its jurisdiction" in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."
***[Discussion of additional cases related to issue of citizenship by birth, dual citizenship, etc., under 14th Amendment and continued discussion/conclusion of case] ***
United States v. Wong Kim Ark, 169 U.S. 649 (1898) (Justia.com).
Source/Notes:
| Town of New Hartford v. Town of Canaan, 5 A. 360 (Ct. S.Ct. 1886). |
under construction
Summary of Case:
[361]
Excerpt:
In Lynch v. Clarke, 1 Sandf. Ch. 584, it is said as follows:"Upon principle, therefore, I can entertain no doubt but that, by the law of the United States, every person born within the dominion and allegiance of the United States, whatever were tlie situation of his parents, is a natural-born citizen. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this cause, and, so far as I have been able to ascertain, it never has been expressly decided in any of the courts of the respective states or of the United States. This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common-law rule was the law of the land. This inference is confirmed and the position made morally certain by such legislative, judicial, and legal expositions as bear upon the question. Before referring to those I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country does of itself constitute citizenship. Thus, when, at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that he is a citizen. No one inquires further. No one asks whether his parents were citizens or were foreigners. It is enough that he was born here, whatever was the status of his parents. I know that common consent is sometimes only a common error, and that public opinion is not any authority on a point of law; but this is a question which is more important and more deeply felt in reference to political rights than to rights of property. The universality of the public sentiment in this instance is a part of the historical evidence of the state and progress of the law on the subject, indicates the strength and depth of the common-law principle, and confirms the position that the adoption of the federal constitution wrought no change in that principle."
"In McKay v. Campbell, 2 Sawy. 118, it is said:
"By the common law a child born within the allegiance of the United States is born a subject thereof, without reference to the political status or condition of its parents."
In 2 Kent, Cornm. (9th Ed.,) it is said that "natives are all persons bom within the jurisdiction and allegiance of the United States." To the text is subjoined the following note:
"This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with tho exception of the children of embassadors, who are in theory born within the allegiance of the foreign power they represent" Calvin's Case, 7 Coke, 1; Lynch v. Clarke, 1 Sandf. Ch. 584, 639.
In this last case the doctrine relative to the distinction between aliens and citizens in the jurisprudence of the United States was extensively and learnedly discussed; and it was adjudged that the subject of alienage, under our national compact, was a national subject, and that the law on this subject which prevailed in all the United States became the common law of the United States when the union of the states was consummated; and the general rule above stated is consequently the governing principle or common law of the United States, and not of:the individual states, separately considered. The right of citizenship, as distinguished from alienage, is a national right, character, or condition, and does not pertain to the individual states, separately considered. The question is of national and not individual sovereignty, and is governed by the principles of the common law which prevail in the United States, and became, under the constitution, to a limited extent, a sys- teni of national jurisprudence. It was accordingly held in that case that the complainant, who was born in New York of alien parents during their temporary sojourn there, and returned while an infant, being the first year of her birth, with her parents to their native country, and always resided there afterwards, was a. citizen of-'the United States by birth. This was the principle of the English common law in respect to all persons born within the king's allegiance, and was the law of the colonies, and became the law of each and all of the states when the declaration of independence was made, and continued so until the establishment of the constitution of the United States, when the whole exclusive jurisdiction of this subject of citizenship passed to the United States, and the same principle has there remained.
In Field's International Code, 132, it is said: "A legitimate child, wherever born, is a member of the nation of which its father, at the time of its birth, was a member." Upon this, Morse, in his work on Citizenship, (page 17,) thus comments:
"This is the law in most European States ... but not in England or the United States. However, in Ludlam v. Ludlam, 26 N.Y. 371, the court says: 'Citizenship of the father is that of the [363] child so far as the laws of the country of the father are concerned. An it has been held in the United States that the national character of the parent is of no importance, even in the case of a child born within tlie territory to a parent who has not been, and has not taken any steps towards becoming, naturalized here, and who removes the child while an infant. Lynch-' v. Clarke, 1 Sanf. Ch. 585. But this decision seems not to be entirely approved, (Munro v. Merchant, 26 Barb. 400, 401,) and probably would, at the most, beconsidered as authority only in regard to the right of succession to real property within that state."
But in Munro v. Merchant, supra, the marginal note is as follows: "A child born in this state, of alien parents, during its mother's temporary".. sojourn here, is a native-born citizen." And the court says:
''It is further contended on the part of the defendant that the plaintiff himself is an alien. He was born in Ballston Spa, in this state, while his father was a resident of Canada, and returned to his father's domicile, with 'his mother, within a year after his birth. His mother was temporarily there without any actual change of residence either on her part or that of his father.' It is argued that at common law a natural-born subject was one whose birth was within the allegiance of the king. The cases of children of ambassadors born abroad, and of children born in English seas, were considered exceptions. Chancellor Kent, in his Commentaries, defines a native-born citizen to be a person born within, and an alien one born out of, the jurisdiction of the United States. 2 Kent, Comm. 37-50. In Lynch v. Clarke, 1 Sandf. Ch: 583, the question was precisely as here,—whether a child born in the city of New York, of alien parents, during their temporary sojourn there, was a native-born citizen or an alien; and the conclusion was that, being born within the dominion and allegiance of the United States, he was a native-born citizen, whatever was the situation of the parents at the time of the birth. This case, if law, would seem to be decisive of the present question. But, admitting the plaintiff to be an alien, the cases already cited show that the term 'heirs or assigns,' in the ninth article of the treaty, is not to be confined ' to the immediate descendants, but is to be extended indefinitely till the title comes to a citizen."
The court did not find it necessary to deny the doctrine of Lynch y; Clarke, but rested its decision upon other grounds.
In Ludlam v. Ludlam, supra, among other facts found is the following: R. L. Ludlam, the father of Maximo M. Ludlam, in 1822 voluntarily expatriated himself from the United States, where he was a natural-born citizen, for the purpose of becoming a permanent resident of Lima, in Peru, South America, and of establishing his permanent domicile there; and a few months thereafter did become such permanent resident, and establish his permanent domicile there, and M. M. Ludlam was there born of a native of Chili. The court says:
"If we assume that the laws of Peru are similar to ours on the subject of citizenship, there is no doubt that Maximo Ludlam would be in that country regarded as a citizen of Peru. 1 Saudf. Ch. 583. This would involve him, according to the rules which I find established, in a double allegiance to this country and Peru; and it cannot be denied that inconveniences might result from such a condition. The case, however, is not new, and I am not aware that any practical inconvenience has ever resulted to persons occupying such positions; their immunity in this respect resulting mainly, it may be presumed, from the liberality of civilized governments towards persons thus situated. - * * * Practically the person so situated secures all the rights of [364] citizenship, or at least the right of inheritance, in two countries; and discharges the duties of allegiance in only one."
In Morse on Citizenship (page 241, § 203) is the following citation from an opinion of the secretary of state to the president:
"The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties, with regard to this country, which do not attach to the father. * * * Such children are born to a. double character. The citizenship of the father is that of the child, so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country; but the child, from the circumstances of its birth, may acquire rights and owes another fealty besides that which attaches to the father."
In Rawle's View of the Constitution of the United States (page 86) it is said:
"Every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural-born citizen within the sense of the constitution, and entitled to all the rights and privileges appertaining to that capacity."
Again, neither in Ludlam v. Ludlam nor in Munro v. Merchant, supra, did the court undertake to decide the political question as to the extent to which the United States would be compelled to go in defense of persons born here of aliens. In each case it was defining private pecuniary rights under state laws. Such is the nature of the question in the case at bar. Practically, it is, under our statutes, from what town is La Fayette Parrott entitled to receive aid if in want?
Moreover, if, as is suggested, he was born to the advantages of a double allegiance, upon attaining his majority he exercised the right which was his, of electing the government to which he would give allegiance, and that election related back to the time of birth. Upon these authorities, La Fayette had by birth what his father did not then have, citizenship of the United States and of the state of Massachusetts. This privilege neither needed nor received any strengthening by reflection from the subsequent naturalization of his father. He held it to the fullest extent in his own, and that the highest, right. ..."
Town of New Hartford v. Town of Canaan, 5 A. 360 (Ct. 1886).
Source/Notes:
| In Re Look Tin Sing, 10 Sawyer 353, 21 Fed. Rep. 905 (Fed. Cir. (Ca.) 1884) |
under construction
Summary of Case:
[Thayer, 579]
Excerpt:
"The first section of the Fourteenth Amendment to the Constitution declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words "subject to the jurisdiction thereof." They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them, when obedience can he rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must at the time be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This extra-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents. Persons born on a public vessel of a foreign country, whilst within the waters of the United States, and consequently within their territorial jurisdiction, are also excepted. They are considered as born in the country to which the vessel belongs. In the sense of public law, they are not born within the jurisdiction of the United States. ..."[581] "Independently of the constitutional provision, it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves, and their descendants, that birth within the dominions and jurisdiction of the United States of itself creates citizenship. This subject was elaborately considered by Assistant Vice-Chancellor Sand- ford in Lynch v. Clarke, found in the first volume of his reports. 1 Sandf. 583. In that case one Julia Lynch, born in New York, in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterwards. It was held that she was a citizen of the United States.
After an exhaustive examination of the law, the Vice-Chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen; and added, that this was the general understanding of the legal profession, and the universal impression of the public mind. In illustration of this general understanding, he mentions the fact, that when at an election an inquiry is made whether the person offering to vote is a citizen or an alien, if he answers that he is a native of this country the answer is received as conclusive that he is a citizen; that no one inquires further; no one asks whether his [582] parents were citizens or foreigners; it is enough that he was born here whatever was the status of his parents. He shows also that legislative expositions on the subject speak but one language, and he cites to that effect not only the laws of the United States, but the statutes of a great number of the States, and establishes conclusively that there is on this subject a concurrence of legislative declaration with judicial opinion, and that both accord with the general understanding of the profession and of the public."
As quoted in James Bradley Thayer, CASES ON CONSTITUTIONAL LAW - Part 2 (1894) (page numbers noted above).
Source/Notes:
| Elk v. Wilkins, 112 U. S. 94 (U.S. 1884) |
under construction
Summary of Case:
"The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which '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;' and 'the Congress shall have power to establish an uniform rule of naturalization.' Constitution, art. 2, sect. 1 ; art. 1, sect. 8. ...
Excerpt: 'This section [Amendment XIV., s. 1] contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, cither individually, as by proceedings under the Naturalization Acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
"Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations."
As quoted in James Bradley Thayer, CASES ON CONSTITUTIONAL LAW - Part 2 (1894), at p. 588.
Source/Notes:
| Minor v. Happersett, 21 Wall. 162 (U.S. 1874) |
under construction
Summary of Case:
"The Constitution does not, in words, say who shall.be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words 'all children ' are certainly as comprehensive, when used in this connection, as 'all persons,' and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea.")."
Excerpt: As quoted in James Bradley Thayer, CASES ON CONSTITUTIONAL LAW - Part 2 (1894), at 459. Also available at UNITED STATES SUPREME COURT REPORTS - BOOK 22 (Lawyers Co-operative Publishing Company) at 162-78.
Source/Notes:
| See Also ... (References to Additional Primary Sources - Post-1868) |
--- THE FOUNDERS' CONSTITUTION lists several more cases, etc., here.
--- William A. Richardson (Secreatary of the Treasury) Letter to the President (re: expatriation) (Aug. 1873), in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES BY UNITED STATES DEPT. OF STATE, Vol. 2 (1873) at 1193, 1208 (quoting Doe v. Jones -- "the character of a natural-born subject, anterior to any of the statutes, was incidental to birth only; whatever were the situation of his parents, the being born within the allegiance of the king constituted a natural-born subject." -- and noting: "Such was the common law of the United States anterior to the passage of the act of 1804.")
--- "Morrison v. California, 291 U.S. 82, 85 (1934) (noting that although persons of Japanese descent were not eligible to become citizens through naturalization, a person of Japanese descent is a citizen of the United States if he was born within the United States, citing Wong Kim Ark)." (as cited in Dellinger Statement, FN 15).
--- "Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 n.10 (1963) (confirming that the citizenship clause "is to be interpreted in light of pre-existing common-law principles governing citizenship"." (as cited in Dellinger Statement, FN 15).
--- "Schneider v. Rusk, 377 U.S. 163, 165 (1964) ("We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the "natural born" citizen is eligible to be President. Art. II, § 1.")." (as cited in Freedman at 143).
--- "Rogers v. Bellei, 401 U.S. 815, 829-30 (1971) (citizenship clause is "'declaratory of existing 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"." (as cited in Dellinger Statement, FN 15).
--- "Plyler v. Doe, 457 U.S. 202, 211 n.10 (1982) (relying on Wong Kim Ark's predominantly geographic interpretation of the "jurisdiction" clause of the Fourteenth Amendment." (as cited in Dellinger Statement, FN 15).
--- "INS v. Rios-Pineda, 471 U.S. 444, 446 (1985) (in habeas proceeding brought by deportable aliens, Court noted that respondent had given birth to a child, "who, born in the United States, was a citizen of this country"." (as cited in Dellinger Statement, FN 15).
--- "H.R.J. Res. 42, 108th Cong., (2003) (example of attempts made to amend the Constitution to exclude children born in the United States to illegally present aliens or non-permanent residents from acquiring birthright United States citizenship)." (as cited in Duggin & Collins, at 90-91 and n.197).
| TREATISES/AUTHORITIES - Pre-1789 |
| Emmerich de Vattel, THE LAW OF NATIONS OR THE PRINCIPLES OF NATURAL LAW (1758) |
1/6 Update: Smith, quoted elswhere, refers to Vattel's views as one of the two competing views at the time of the Revolution. According to Smith (quoting Madison), however, the founders meant to adopt the jus soli principle set forth in Blackstone, and not Vattel's view: "... But in keeping with the nativistic tone of the debate over these clauses, and not with the Constitution's predominant liberal republicanism, it was almost certainly the common-law criterion of place of birth that the delegates meant to install, as Madison later asserted. It thus perpetuated the older view of "natural" civic membership in a way that conformed to xenophobic sentiments."
Excerpt:
"§ 212. Citizens and Natives. The citizens are members of the civil society; bound to this society by certain duties, and subject to its authority, they participate equally in its advantages. The natives, or natural-born citizens, are those born in the country, to parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, upon entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and those become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will only be the place of his birth, and not his country."
| William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND (1765) |
As quoted in THE FOUNDERS' CONSTITUTION (Kurland & Lerner, Ed.):
"The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.
. . . . .
Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due. Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince.
Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection: and it ceases, the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. As therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.
. . . . .
When I say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that 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.
The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.
***"
Note: Another version of Blackstone's Commentaries can be found at William Draper Lewis, Ed., COMMENTARIES ON THE LAWS OF ENGLAND BY WILLIAM BLACKSTONE, Book 1 (1922). Chapter 10, "Of the People, Whether Aliens, Denziens, or Natives," which discusses citizenship concepts, including the text excerpted above, is at 335-37. Discussion regarding children of non-citizen parents born in England starts at page 334.
| See also .... (Treatises/Authorities, pre-1789) |
| TREATISES/AUTHORITIES - from 1789-1868 |
| St. George Tucker, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803) (Reprint) |
"The federal court, consisting of judges Wilson and Blair, of the supreme court, and judge Peters, district judge in Pennsylvania, at a circuit court held for the district of Pennsylvania, in April, 1792; decided, "that the states, individually, still enjoy a concurrent jurisdiction upon the subject of naturalization: but that their individual authority cannot be exercised so as to contravene the rule established by the authority of the union: the true reason for investing congress with the power of naturalization (said the court,) was to guard against too narrow, instead of too liberal a mode of conferring the right of citizenship. Thus the individual states cannot exclude those citizens, who have been adopted by the United States; but they can adopt citizens upon easier terms, than those which congress may deem it expedient to impose."
But this decision seems to have been afterwards doubted by judge Iredel, 2 Dallas, 373. And the act of 5 cong. c. 71. declares, that "no alien shall be admitted to become a citizen of the United States, or of any state, unless in the manner prescribed by that act." And by a subsequent act, passed 7 cong. chapter 28, it is also declared, that any alien, being a free white person, may become a citizen of the United States, or any of them, on the conditions therein mentioned, "and not otherwise." These legislative expositions of the constitution do not accord with the judicial opinion above-mentioned. A very respectable political writer makes the following pertinent remarks upon this subject. "Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. ...
***
By the adoption of the constitution of the United States, the rights of aliens to become citizens was by no means intended to be taken away. . . . on the contrary, it is expressly provided, that congress shall have power to establish an uniform rule of naturalization, throughout the United States. The dissimilarity in the rules of naturalization, in the several states, was supposed to have laid the foundation for intricate and delicate questions, under that article of the confederation which declares, that the free inhabitants of each state, paupers, vagabonds, and fugitives from justice excepted, should be entitled to all privileges and immunities of free citizens in the several states; under which provision, it seems to have been apprehended, that the free inhabitants of one state, although not citzens thereof, might be entitled to all the privileges of citizens in every other: to obviate this and similar inconveniencies, this power of prescribing an uniform rule of naturalization was vested in the federal government. And here we may observe, that congress are authorised to prescribe the mode by which aliens may be naturalized, but it never was intended to authorise it to take away the right. ....Aliens, in the United States, are at present of two kinds. Aliens by birth; and aliens by election. . . . 1. Aliens by birth, are all persons born out of the dominions of the United States, since the fourth day of July, 1776, on which day they declared themselves an independent and sovereign nation, with some few exceptions, viz. 1. In favour of infants, "wheresoever born, whose father, if living, or otherwise, whose mother was a citizen at the time of the birth of such infants; or who migrated hither, their father, if living, or otherwise their mother becoming a citizen of the commonwealth; or who migrated hither without father, or mother," during the continuance of the act of May, 1779, c. 55, declaring who should be deemed citizens, which was repealed October, 1783, c. 16, of that session, so far as relates to the two latter cases; but continued as to the first. 2. Such persons as have obtained a right to citizenship under the existing laws of the state, whether infants, or otherwise. Edi. 1794, c. 110. 3. Such persons as have been naturalized under the act of 1 Cong. 2 Sess. c. 3. 4. Such persons as have, or may acquire the rights of citizenship pursuant to the act of 3 Cong. c. 85, and the children of such persons duly naturalized dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization; and the children of citizens of the United States, born out of the limits and jurisdiction of the United States. But the same act declares that the right of citizenship shall not descend to persons, whose fathers have never been resident in the United States. . . . All persons born before the fourth day of July, 1776, who were not natural born subjects of the crown of Great-Britain; nor were on that day residents within, or inhabitants of the United States; nor have since that time become citizens of the United States, or some one of them, are also aliens by birth."
| William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829) |
As quoted in THE FOUNDERS' CONSTITUTION (Kurland & Lerner, Ed.):
"It cannot escape notice, that no definition of the nature and rights of citizens appears in the Constitution. The descriptive term is used, with a plain indication that its meaning is understood by all, and this indeed is the general character of the whole instrument. Except in one instance, it gives no definitions, but it acts in all its parts, on qualities and relations supposed to be already known. Thus it declares, that 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--that no person shall be a senator who shall not have been nine years a citizen of the United States, nor a representative who has not been such a citizen seven years, and it will therefore be not inconsistent with the scope and tendency of the present essay, to enter shortly into the nature of citizenship.
***
The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths, accompanied them in the formation of the great, compound commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former, and he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity. It is an error to suppose, as some (and even so great a mind as Locke) have done, that a child is born a citizen of no country and subject of no government, and that he so continues till the age of discretion, when he is at liberty to put himself under what government he pleases. How far the adult possesses this power will hereafter be considered, but surely it would be unjust both to the state and to the infant, to withhold the quality of the citizen until those years of discretion were attained. Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.
Note: Rawle's complete work is available on Google Books: William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829). The excerpt quoted above is on page 85-86.
| James Kent, COMMENTARIES ON AMERICAN LAW (1826-30) |
As quoted in THE FOUNDERS' CONSTITUTION (Kurland & Lerner, Ed.):
"We are next to consider the rights and duties of citizens in their domestic relations, as distinguished from the absolute rights of individuals, of which we have already treated. Most of these relations are derived from the law of nature, and they are familiar to the institutions of every country, and consist of husband and wife, parent and child, guardian and ward, and master and servant. To these may be added, an examination of certain artificial persons created by law, under the well known name of corporations. There is a still more general division of the inhabitants of every country, under the comprehensive title of aliens and natives, and to the consideration of them our attention will be directed in the present lecture.
(1.) Natives are all persons born within the jurisdiction of the United States. If they were resident citizens at the time of the declaration of independence, though born elsewhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation. If a person was born here before our independence, and before that period voluntarily withdrew into other parts of the British dominions, and never returned; yet, it has been held, that his allegiance accrued to the state in which he was born, as the lawful successor of the king; and that he was to be considered a subject by birth. It was admitted, that this claim of the state to the allegiance of all persons born within its territories prior to our revolution, might subject those persons who adhere to their former sovereign, to great inconveniences in time of war, when two opposing sovereigns might claim their allegiance; and, under the peculiar circumstances of the case, it was, undoubtedly, a very strong application of the common law doctrine of natural and perpetual allegiance by birth. The inference to be drawn from the discussions in the case of M'Ilvaine v. Coxe, would seem to be in favour of the more reasonable doctrine, that no antenatus ever owed any allegiance to the United States, or to any individual state, provided he withdrew himself from this country before the establishment of our independent government, and settled under the king's allegiance in another part of his dominions, and never afterwards, prior to the treaty of peace, returned and settled here. The United States did not exist as an independent government until 1776; and it may well be doubted whether the doctrine of allegiance by birth be applicable to the case of persons who did not reside here when the revolution took place, and did not, therefore, either by election or tacit assent, become members of the newly created state. The ground of the decision in the latter case was, that the party in question was not only born in New-Jersey, but remained there as an inhabitant until the 4th of October, 1776, when the legislature of that state asserted the right of sovereignty, and the claim of allegiance over all persons then abiding within its jurisdiction. By remaining there after the declaration of independence, and after that statute, the party had determined his right of election to withdraw, and had, by his presumed consent, become a member of the new government, and was, consequently, entitled to protection, and bound to allegiance. The doctrine in the case of Respublica v. Chapman, goes also to deny the claim of allegiance, in the case of a person who, though born here, were not here and assenting to our new governments, when they were first instituted. The language of that case was, that allegiance could only attach upon those persons who were then inhabitants. When an old government is dissolved, and a new one formed, "all the writers agree," said Ch. J. M'Kean, "that none are subjects of the adopted government who have not freely assented to it." The same principle was declared by the Supreme Court of this state, in Jackson v. White, and it was held, that though a British subject resided here as a freeholder on the 4th of July, 1776, and on the 16th of July, 1776, when the convention of this state asserted the right of sovereignty, and the claim of allegiance over all persons, was abiding here; yet that, under the circumstances, the person in question being a British officer, and a few weeks thereafter placed on his parole, and in December, 1776, joining the British forces, was to be deemed an alien, and as having never changed his allegiance, or elected to become a party to our new government. The doctrine in the case of Ainslie v. Martin, was contrary also to what had been held by the same court in the cases of Gardner v. Ward, and Kilham v. Ward, where it was decided, that persons born in Massachusetts before the revolution, who had withdrawn to a British province before our independence, and returned during the war, retained their citizenship; while the same persons, had they remained in the British province until after the treaty of peace, would have been British subjects, because they had chosen to continue their former allegiance, and there was but one allegiance before the revolution. This principle was asserted by the same court in the case of Phipps, and I consider it to be the true and sound law on the subject.
It is the doctrine of the English law, that natural born subjects owe an allegiance, which is intrinsic and perpetual, and which cannot be devested by any act of their own. In the case of Macdonald, who was tried for high treason, in 1746, before Lord Ch. J. Lee, and who, though born in England, had been educated in France, and spent his riper years there, his counsel spoke against the doctrine of natural allegiance as slavish, and repugnant to the principles of their revolution. The Court, however, said, it had never been doubted, that a subject born, taking a commission from a foreign prince, and committing high treason, was liable to be punished as a subject for that treason. They held, that it was not in the power of any private subject to shake off his allegiance, and transfer it to a foreign prince; nor was it in the power of any foreign prince, by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the crown. Entering into foreign service, without the consent of the sovereign, or refusing to leave such service when required by proclamation, is held to be a misdemeanor at common law.
It has been a question, frequently and gravely argued, both by theoretical writers, and in forensic discussions, whether the English doctrine of perpetual allegiance applies in its full extent to this country. The writers on public law have spoken rather loosely, but generally in favour of the right of a subject to emigrate, and abandon his native country, unless there be some positive restraint by law, or he is at the time in possession of a public trust, or unless his country be in distress, or in war, and stands in need of his assistance. Cicero regarded it as one of the firmest foundations of Roman liberty, that the Roman citizen had the privilege to stay or renounce his residence in the state, at pleasure. The principle which has been declared in some of our state constitutions, that the citizens have a natural and inherent right to emigrate, goes far towards a renunciation of the doctrine of the English common law, as being repugnant to the natural liberty of mankind, provided we are to consider emigration and expatriation, as words intended in those cases to be of synonymous import. But the allegiance of our citizens is due, not only to the local government under which they reside, but primarily to the government of the United States; and the doctrine of final and absolute expatriation requires to be defined with precision, and to be subjected to certain established limitations, before it can be admitted into our jurisprudence, as a safe and practicable principle, or laid down broadly as a wise and salutary rule of national policy. The question has been frequently discussed in the courts of the United States, but it remains still to be definitively settled by judicial decision.
***
(2.) An alien is a person born out of the jurisdiction of the United States. There are some exceptions, however, to this rule, by the ancient English law, as in the case of the children of public ministers abroad, (provided their wives be English women,) for they owe not even a local allegiance to any foreign power. So, also, it is said, that in every case, the children born abroad, of English parents, were capable, at common law, of inheriting as natives, if the father went and continued abroad in the character of an Englishman, and with the approbation of the sovereign. The statute of 25 Edw. III. stat 2, appears to have been made to remove doubts as to the certainty of the common law on this subject, and it declared, that children thereafter born without the ligeance of the king, whose father and mother, at the time of their birth, were natives, should be entitled to the privileges of native subjects, except the children of mothers who should pass the sea without leave of their husbands. The statute of 7 Ann, c. 5. was to the same general effect; but the statute of 4 Geo. II. c. 31. required only that the father should be a natural born subject at the birth of the child, and it applied to all children then born, or thereafter to be born. Under these statutes it has been held, that to entitle a child born abroad to the rights of an English natural born subject, the father must be an English subject; and if the father be an alien, the child cannot inherit to the mother, though she was born under the king's allegiance. ..."
| Joseph Story, COMMENTARIES ON THE CONSTITUTION (1833) |
As quoted in THE FOUNDERS' CONSTITUTION (Kurland & Lerner, Ed.):
"§ 1472. Considering the nature of the duties, the extent of the information, and the solid wisdom and experience required in the executive department, no one can reasonably doubt the propriety of some qualification of age. That, which has been selected, is the middle age of life, by which period the character and talents of individuals are generally known, and fully developed; and opportunities have usually been afforded for public service, and for experience in the public councils. The faculties of the mind, if they have not then attained to their highest maturity, are in full vigour, and hastening towards their ripest state. The judgment, acting upon large materials, has, by that time, attained a solid cast; and the principles, which form the character, and the integrity, which gives lustre to the virtues of life, must then, if ever, have acquired public confidence and approbation.
§ 1473. It is indispensable, too, that the president should be a natural born citizen of the United States; or a citizen at the adoption of the constitution, and for fourteen years before his election. This permission of a naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country. A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities. But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this source. A residence of fourteen years in the United States is also made an indispensable requisite for every candidate; so, that the people may have a full opportunity to know his character and merits, and that he may have mingled in the duties, and felt the interests, and understood the principles, and nourished the attachments, belonging to every citizen in a republican government. By "residence," in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period; but such an inhabitancy, as includes a permanent domicil in the United States. No one has supposed, that a temporary absence abroad on public business, and especially on an embassy to a foreign nation, would interrupt the residence of a citizen, so as to disqualify him for office. If the word were to be construed with such strictness, then a mere journey through any foreign adjacent territory for health, or for pleasure, or a commorancy there for a single day, would amount to a disqualification. Under such a construction a military or civil officer, who should have been in Canada during the late war on public business, would have lost his eligibility. The true sense of residence in the constitution is fixed domicil, or being out of the United States, and settled abroad for the purpose of general inhabitancy, animo manendi, and not for a mere temporary and fugitive purpose, in transitu."
See also FOUNDERS' CONSTITUTION, 3:§§ 1098-99 for Story's discussion re: citizenship and naturalization.
| John Codman Hurd, THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES (1858-1862) |
[304 (internal citations omitted)]
The first section of the second article of the Constitution uses the language, "a natural-born citizen." In these [illegible] that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which [conferred] citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general definition has been, in conformity with the common law, that free persons born within either of the colonies were subjects of the King; that by the Declaration of Independence, and the subsequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the states, or availed themselves, reasonably, of the right to adhere to the British Crown in the civil conte[x]t and thus to continue British Subjects.
| George Washington Paschal, THE CONSTITUTION OF THE UNITED STATES DEFINED AND CAREFULLY ANNOTATED (1868) |
[Page 167, italics in original, citing AG Bates on Citizenship]
"169. "A Natural Born Citizen." -- Not made by law or otherwise, but born. And this class is the large majority; in fact the mass of our citizens; all others are exceptions specially provided for by law. As they become citizens by birth, so they remain citizens during their natural lives, unless, by their own voluntary act, they expatriate themselves and beocme citizens or subjects of another nation. For we have no law (as the French have) to decitizenize a citizen who has become such eitehr by the natural process of birth or the legal process of adoption.
The Constitution does not make the citizen (it is, in fact, made by them). It only intends and recognizes such of them as are natural, home-born, and provides for the naturalization of such of them as are alien, foreign born, making the latter, as far as nature would allow, like the former. We have no middle class or denziens. But Attorney-General Legare thought there might be. The example of a Roman citizen and St. Pal's case and claim thereto cited. Paul's is a leading case of the "jus romanum;" it is analagous to our own; it establishes the great protective rights of the citizen, but like our own national Constitution, it is silent about his powers.
"Natural Born Citizen" recognizes and reaffirms the universal principle common to all nations, and as old as political society, that the people born to a country do constitute the nation, and, as individual, are natural members of the body politic.
Every person born in the country is, at the moment of birth, prima facie a citizen.
Nativity furnishes the rule, both of duty and for right, as between the individual and the government."
| See Also ... (References to Additional Treatises/Authorities - 1789-1868) |
--- In addition to the excerpts quoted above, THE FOUNDERS' CONSTITUTION lists several more authorities here.
--- "Letter for Mr. Mason, United States Minister to France, from Mr. Marcy, Secretary of State (June 6, 1854), in 2 Francis Wharton, DIGEST OF THE INTERNATIONAL LAW OF THE UNITED STATES 394 (2d ed. 1887) ("In reply to the inquiry which is made by you . . . whether 'the children of foreign parents born in the United States, but brought to the country of which the father is a subject, and continuing to reside within the jurisdiction of their father's country, are entitled to protection as citizens of the United States,' I have to observe that it is presumed that, according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship.")." (as cited in Dellinger Statement, FN 8).
| TREATISES/AUTHORITIES - from 1868-1960 |
| Letter from Mr.McLane (US) to Mr. Flourens (France) re: US citizens, in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, Part 1 (1888) at 503 |
"I could let the matter rest there, but it would then bo the painful duty of my Government to advise its citizens of French origin that it is powerless to prevent their being arrested and impressed into the French military service should they visit France, and that alone among all natural-born Americans those who happen to have French father do not find under the jurisdiction of the French Republic tho protection extended everywhere to every American citizen. *** The cases of the two first named are almost identical. Both emigrated to tho United States when minors; both established themselves there in a permanent manner and regularly acquired American citizenship, although in different ways; Arbios by the fact of the naturalization of his father; Fruchier by direct naturalization. Аs for Ge:idrot, he is a natural-born Amercan, whose father is a Frenchman. Coming to France provided with all their papers and with the purpose of making only a temporary sojourn there, they were arrested, imprisoned, and brought before the military authorities, who sent them all three to tho army ...."
| Albert Orville Wright, AN EXPOSITION ON THE CONSTITUTION OF THE UNITED STATES (31st Ed.) (1888) |
[87]
"IV. Natural-Born Citizens. — This phrase is used in Article II, section 1, where it is provided that the President of the United States shall be a natural-born citizen. A natural-born citizen is not necessarily a native of the United States. Members of Indian tribes are natives, but are not natural-born citizens. And there are some natural-born citizens who are not natives of the United States, but were born in other countries. There are two conditions required to make a natural-born citizen — parentage and place of birth. A child born of American parents in any place under American jurisdiction is unquestionably a natural-born American citizen. But where the parentage and birthplace do not agree, there is a case of doubtful citizenship which is decided by the choice of the person himself, when he comes to years of manhood.
Any person born of an American father, in a place subject to the jurisdiction of a foreign nation, may be a natural-born American citizen, if he claims that privilege when he arrives at the proper age. So, also, any person born of a foreign father in any place subject to the jurisdiction of the United States, may be a natural- born American citizen, if he choose. In these doubtful cases the person may choose the country of his father or the country of his birth. So that a person may be a natural-born citizen of the United States, without being a native of the United States.
The places outside the United States which are subject to the jurisdiction of the United States, are (a) United States men-of-war anywhere, (b) Ships bearing the American flag, while on the high seas, but not in a foreign port, (c) Places purchased for naval stations. (d) The houses in which American ambassadors in foreign lands reside. This extends also to the [88] persons and families of these ambassadors and their subordinate officers. So that a child born to any of them in a foreign coutnry is considered to be born under the jurisdiction of this country. This extends to consuls in heathen or Mohammedan lands, but not to consuls in Christian lands.
So also the children of foreign ambassadors or their subordinates born in this country are not natural-born citizens."
***[166-67 - Discussing Constitution Article II, Clause 5]
"I. Citizenship. -- The President must be a natural-born citizen of the United States. The President must be a citizen by inheritance, not by adoption. He cannot be a naturalized citizen; but it is possible that a person born out of the United States might be President. The child of American parents born in foreign lands, would be a natural-born citizen, but not a native-born citizen ....
***[286 - Discussing Fourteenth Amendment]
"1. Citizenship Defined.--The question fo who are and who are not citizens had been left somewhat vague till this amendment was adopted. And the exact position of free negros was in doubt. The thirteenth amendment had made all negroes free persons. This amendment now made them citizens. Hereafter there can be no question as to who are citizens of the United States.
All persons born in the United States, except wild Indians, are natural-born citizens, and any foreigner may become an adopted citizen by being naturalized...."
| William Hardcastle Browne, Ed., COMMENTARIES ON AMERICAN LAW BY JAMES KENT (1894). |
[122]
"2. [The President's] Qualifications.
The president must be a natural born citizen, or have been a citizen at the date of the adoption of the constitution. He must have attained the age of thirty-five years, and have been fourteen years a resident within the United States. Hence ambitious foreigners cannot intrigue for the office, and the qualification of birth checks inducements from abroad to corruption, negotiation and wars, which have frequently and fatally harassed the elective monarchies of Germany and Poland, as well as the pontificate at Rome. The age of the president suffices to form his character, and his previous domestic residence has afforded his fellow citizens a correct knowledge of his principles and capacity.
***[217]
"Natives, Defined.
Natives are all persons born within the jurisdiction and allegiance of the United States. Resident citizens of this country at the time of the declaration of independence, though born elsewhere, but sustaining it, were deemed natives. But no ante-natus ever owed allegiance to the United States, or to any individual state, provided he withdrew himself from this country before the establishment of our independent government, and settled elsewhere under the king's allegiance, never returning and settling here.
In Revolutionary Times.
It was held, that a party, by remaining here after the declaration of independence, had, by his presumed consent, become a member of the new government, and was entitled to protection and bound to allegiance. That allegiance did not exist in the case of a party born here, but who was not here, and assenting to our new government, when it was first instituted. Allegiance could only attach upon those persons, who were then inhabitants.
Change in Government.
When an old government is dissolved, and a new one formed, all writers agree, that none are subjects of the adopted government. who have not freely assented to it. It was decided, that a party born here before the revolution, who had withdrawn to a British province before our independence and returned during the war, retained his citizenship; while had the same party remained in the British province until after the treaty of peace, he would have been a British subject.8 Doctrine of Allegiance.
To create allegiance by birth, the party must be born, not only within the territory, but within the allegiance of the government. Children born in the armies of a state while abroad, are deemed [218] born in the allegiance of the sovereign to whom the army belongs. During such hostile occupation of a country, if the parents be adhering to the enemy as subjects de facto, their children, born under such temporary dominion, are not born under the allegiance of the conquered."
***
[220]
"Children Born Abroad.
Children of American citizens, though born abroad, shall also be deemed American citizens; provided that the right of citizenship shall not descend to persons, whose fathers have never resided here."
| David Shephard Garland et al, THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW, 2d Ed. Vol. 6 (1898) |
[Citizenship Chapter - How Citizenship Acquired]
[17]
2. By Birth in Jurisdiction. — Natural citizenship is created by birth within the jurisdiction of the United States.1 To be a citizen of the United States [18] by reason of birth, a person must not only be born within its territorial limits, but must also be born subject to its jurisdiction; that is, in its power and obedience.NOTES:
[17] Presumption from Residence. — The law presumes all persons who reside here to be citizens of the United States until the contrary appears. State v. Beackmo, 6 Blackf. (Ind.) 488.
1. Lynch v. Clarke, I Sandf. Ch.(N. Y.) 639; In re Look Tin Sing, 21 Fed. Rep. 905.
All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. U. S. Rev. Stat., § 1992. See Planters' Bank v. St. John, I Woods (U. S.) 585; McKay v. Campbell, 2 Sawy. (U. S.) 118.Birth in United States, of Alien Parents. — Prior to the adoption of the Fourteenth Amendment to the Constitution, the case of Lynch v. Clarke, I Sandf. Ch. (N. Y.) 584, was the leading case holding that birth within the United States created citizenship. The complainant in this case was born in 1819, in New York, of alien parents, during their temporary sojourix in the state. During the first year of her age her parents left this country, taking her with them, and never returned. It was held that the complainant was a citizen of this country by birth. This decision was based on the fact that this was the doctrine of the common law with respect to all persons born within the king's allegiance, and, therefore, the law of the colonies, and then became the law of each state when independence was declared, and so continued until the adoption of the United States Constitution; after the adoption of the Constitution, the exclusive jurisdiction of this subject of citizenship passed to the United States government, and the same doctrine has there remained, and thus became the common law of the United States when the Union was consummated. This doctrine is national, and not for individual states. ...[extended quote from Lynch]... See also New Hartford v. Canaan, 54 Conn. 39; Ludlam v. Ludlam, 26 N. Y. 371 , 84 Am. Dec. 193; Munro v. Merchant, 26 Barb. (N. Y.) 400; U. S. v. Rhodes, l Abb. (U. S.) 40; Calvin's Case, 7 Coke 1.
Persons Born in the United States of Chinese Parents. — In thorough harmony with the views expressed in Lynch v. Clarke, I Sandf. Ch. (N. Y.) 584, is the decision In re Look Tin Sing, 21 Fed. Rep. 905, 10 Sawy. (U. S.) 353. In this case the petitioner belonged to the Chinese race, and was born in California in 1870. In 1879 he went to China, and returned to San Francisco in September, 1884, and sought to land in that city, claiming that he was a natural born citizen of the United States. His parents resided in California, and had lived there twenty years, and had always been subject to the commands of the Chinese government. His father sent the son to China with the intention of his returning. His father was a merchant, and not in any diplomatic or other official capacity under the Chinese government. The petitioner had no certificate, as required by the Acts of 1882 and of 1884, and the United States District Attorney, on behalf of the government, objected to his landing in the United States for want of a certificate. In an elaborate/opinion, Mr. Justice Field, of the Supreme Court of the United States, construes the words in the Fourteenth Amendment to the Federal Constitution, "subject to the jurisdiction thereof," and holds that the previous doctrine, before the amendment, except as applied to Africans and their descendants, was, that birth within the dominion and jurisdiction of the United States of itself created citizenship; that the Fourteenth Amendment to the Federal Constitution was adopted as an authoritative declaration of this doctrine as to the while race, and also to do away with the exceptions as to the negroes and their descendants; and that a child born of Chinese parents within the dominion and jurisdiction of the United States is a citizen of the United States.
To the same effect are: Ex p. Chin King, 13 Sawy. (U. S.) 333, 35 Fed. Rep. 354; In re Yung Sing Hee, 36 Fed. Rep. 437; Gee Fook Sing v. U. S., 7 U. S. App. 27, 49 Fed. Rep. [page 18] 146; Lem Hing Dun v. U. S., 7 U. S. App. 31, 49 Fed. Rep. 148; In re Wong Kim Ark, 71 Fed. Rep. 382.
Birth in British Dominions, though of alien parentage, confers British citizenship. 2 Stephen's Com. (12th ed.) 405.
1. McKay v. Campbell, 2 Sawy. (U. S.) 129.Children of Ambassadors and Ministers are, in theory, born in the allegiance of the powers the ambassadors or ministers represent. U. S. v. Rhodes, I Abb. (U. S.) 40; In re Look Tin Sing, 10 Sawy. (U. S.) 353, 21 Fed. Rep. 905; Calvin's Case, 7 Coke 1; De Geer v. Stone, 22 Ch. Div. 254. See the title Ministers And Ambassadors.
"Subject to the Jurisdiction" of the United States. — In the Fourteenth Amendment to the United States Constitution, which provides that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens, the phrase " subject to the jurisdiction thereof" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states, born within the United States. Slaughter-House Cases, 16 Wall. (U. S.) 73, per Miller, J.
The last phrase in this dictum of Judge Miller, viz., "or subjects of foreign states," must be modified in view of the decisions quoted in the last note supra, with reference to the citizenship of children born in the United States of Chinese parents. Thus, in In re Look Tin Sing, 10 Sawy. ( U. S.) 353, 21 Fed. Rep. 905, Mr. Justice Field said: "Any doubt on the subject, if there can be any, must arise out of the words 'subject to the jurisdiction thereof.' They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must at the time be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. * * * " In the sense of public law, they are not born within the jurisdiction of the United States. The language used has also a more extended purpose. It was designed to except from citizenship persons who, though born or naturalized in the United States, have renounced their allegiance to our government, and thus dissolved their political connection with the country. The United States recognize the right bf every one to expatriate himself and choose another country." This exposition of the phrase is approved in In re Wong Kim Ark, 71 Fed. Rep. 382."
| U.S. Department of State: Citizenship of the United States, Expatriation, and Protection Abroad (1904) |
[73 - Summarizing the law of Citizenship of children born to non-citizen parents]
A. [CHILDREN BORN TO NON-CITIZEN] PARENTS WHO MAY BECOME CITIZENS.
Where the residence was temporary.—This question as to the citizenship of children born in the United States of alien parents who were in this country merely temporarily arose and was elaborately examined in the case of Lynch v. Clark, 1844, 1 Sandf. Ch., 583. It appeared in that case that not only were the parents here temporarily, but that within a year from the time of the child's birth they had taken her with them on their return to their native country— Great Britain. The court showed no hesitancy in declaring that the child so born was a citizen of the United States. In a later New York case, Munro v. Merchant, 1858, 26 Barb., 383, 400, when the question came again before the court, under circumstances that were almost identical, the court followed, but questioned, the Clark case.
Where the residence was permanent.—Of course if the above cases are sound, as they would seem to be on the question of birth, it follows that where the residence is permanent the child born here of such residents should be considered a citizen of the United States; and such has been the uniform doctrine as announced by both Federal and State courts. See McCreery v. Somerville, 1824, 9 Wheat., 354 (children of Irish parents); McClean v. Swanton, 1856, 13 N. Y., 535; Benny v. O'Brien, 1895, 58 N. J. L., 36 (children of Scotch parentage); In re Giovanna, 1899, 93 Fed., 659 (children of Italian parentage); and see Hartford v. Canaan, 1886, 55 Conn.. 39. An interesting application (perhaps an exception) of the doctrine is found in McKay v. Campbell, 1871, 2 Sawy., 118, in which it was held that a child born in Oregon of British parents during the joint occupation of that territory by the United States and Great Britain was a British subject.
B. [CHILDREN BORN TO NON-CITIZEN] PARENTS WHO MAY NOT BECOME CITIZENS.
This question seems to have arisen in connection with alien parents who were domiciled in this country, and not in connection with persons residing here temporarily. Moreover, the cases found have always concerned the citizenship of persons of Chinese pnrentage. The leading case on the subject is In re Look Tin Sing, 1884. 10 [74] Sawy., 353, s. c. 21 Fed., 905, in which Field, circuit justice, held that under the fourteenth amendment a person born of alien parents who might not themselves be naturalized was, by his birth, a citizen of the United States, and that it was immaterial that the parents of such a person were not able to. become citizens under our naturalization laws. This case has been recognized and followed ever since its determination. Ex parte Chin King. Ex parte Chan San Hee, 1888, 35 Fed., 354; In re Yung Sing Hee, 1888, 36 Fed., 437 (in these cases it was declared that the rule acted upon was the rule of the common law which had been incorporated into our " fundamental law" by the fourteenth amendment); In re Wy Shing, In re Wong Gan, 1888, 36 Fed.. 553. While the principle was recognized by the Federal Supreme Court as early as 1891 (see Quock Ting v. United States, 1891, 140 U. S., 417), the question did not come up for decision until the great case of United States v. Wong Kim Ark, 1898, 169 U. S., 649, affirming 71 Fed., 382, when the court held squarely that a person born in the United States of Chinese parentage was a citizen of the United States. While the following decisions have not held this doctrine, they have recognized it, the decision in each case going to the point of what evidence was sufficient or insufficient to establish the fact of citizenship: State v. Chew, 1881, 16 Nov., 50 (which appears to be the earliest case in which the principle is recognized, it being three years earlier than the Look Tin Sing case); Quock Ting v. United States, supra; Lem Hing Dun v. United States, 1892. 1 CT C. A., 210; Gee Fook Sing v. United States, 1893, 49 Fed., 146; United States v. Chung Fung Sun, 1894, 63 Fed., 261; Lee Sing Far v. United States, 1899, 94 Fed., 834.
| Andrew C. McLaughlin & Albert Bushnell Hart ( Ed.), CYCLOPEDIA OF AMERICAN GOVERNMENT Vol. 2 (1914). |
[496]
"NATURAL BORN CITIZENS. A natural-born citizen of the United States is one who is a citizen by reason of his place of birth or the citizenship of his father. The two classes of naturalized and natural born citizens are thus mutually exclusive, and together constitute the entire citizen body of the United States. The Fourteenth Amendment (see) as construed in the case of United States vs. Wong Kim Ark (169 D. 8. 649) provides that every person born within the territorial limits of the United States, even though his parents be aliens, and of a race the members of which are by law excluded from naturalization, are natural-born citizens. Under certain circumstances persons born outside the territorial limits of the United States are demed natural-born citizens, as for example, children of American citizens visiting or traveling abroad. The father must, however, at some time have resided in the United States. Only natural-born citizens are eligible to the offices of President and Vice-President. See Citizenship In The United States; Naturalization, Law of. References: G. W. Garner, Intro, to. Pol. Sci. (1910), ch. xi; F. Van Dyne, Citizenship of U. S. (1904)."
| See Also ... (References to Treatises/Authorities - 1868-1960) |
--- George Grafton Wilson, George Fox Tucker, INTERNATIONAL LAW, 7th Ed. (1917) at 131-33 (discussion of rule of jus soli (adopted, per authors, by Great Britain and US) and jus sanguinis, as adopted by US re: children born to US citizens outside the US, and as adopted by other countries, generally) .
--- "Frederick Van Dyne, CITIZENSHIP OF THE UNITED STATES 6-7 (1904) ("It is beyond doubt that, before the enactment of the civil rights act of 1866 . . . or the adoption of the constitutional amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.") (citations omitted)." (as cited in Dellinger Statement, FN 8).
| TREATISES/AUTHORITIES - from 1960-Present |
| Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) |
[189-91]
"Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are "natural born citizens" and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are "natural born citizens" eligible to serve as President ..."
"In United States v. Wong Kim Ark (1898), the Supreme Court relied on English common law regarding jus soli to inform the meaning of "citizen" in the Fourteenth Amendment as well as the natural-born-citizenship requirement of Article II, and noted that any right to citizenship through jus sanguinis was available only by statute, and not through the Constitution. Notwithstanding the Supreme Court's discussion in Wong Kim Ark, a majority of commentors today argue that the Presidential Eligibility Clause incorproates both teh common-law and English statutory principles, and that therefore, Michigan Governor George Romney, who was born to American parents outside of the United States, was eligible to seek the Presidency in 1968."
| Walter Dellinger (AAG), Statement before the Subcommittees on Immigration and Claims and on the Constitution of the House Committee on the Judiciary (Dec. 13, 1995) |
Note: Per Wikipedia (and sources cited therein), Dellinger served as the acting United States Solicitor General for the 1996-1997 Term of the Supreme Court under President Bill Clinton. Prior to his appointment - when he submitted this statement to Congress - Dellinger was an Assistant Attorney General and head of the Office of Legal Counsel.
Addressing a bill that would deny citizenship to children born in the United States to certain classes of alien parents; concluding such bill would be "unconstitutional on its face.":
"Throughout this country's history, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship. The Constitution itself rests on this principle of the common law. (1) As Justice Noah Swayne wrote in one of the first judicial decisions interpreting the Civil Rights Act of 1866, (2) the word "Citizens 'under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of Congress.' We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States." (3) When Justice Swayne wrote these words, the nation was only beginning to recover from a great Civil War sparked in no small part by the Supreme Court's tragically misguided decision in the Dred Scott case. (4) That decision sought to modify the founders' rule of citizenship by denying American citizenship to a class of persons born within the United States. In response to Dred Scott and to the Civil War, Congress enacted the 1866 Act, and Congress and the States adopted the Fourteenth Amendment in order to place the right to citizenship based on birth within the jurisdiction of the United States beyond question. Any restriction on that right contradicts both the Fourteenth Amendment and the underlying principle that the amendment safeguards.
***
My office grapples with many difficult and close issues of constitutional law. The lawfulness of this bill is not among them. This legislation is unquestionably unconstitutional. The Fourteenth Amendment declares that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." U.S. Const. amend. XIV, § 1. The unmistakable purpose of this provision was to constitutionalize the existing Anglo-American common law rule of jus soli or citizenship by place of birth and especially to extend it to persons of African descent and their descendants.
The phrase "subject to the jurisdiction thereof" was meant to reflect the existing common law exception for discrete sets of persons who were deemed subject to a foreign sovereign and immune from U.S. laws, principally children born in the United States of foreign diplomats, with the single additional exception of children of members of Indian tribes. Apart from these extremely limited exceptions, there can be no question that children born in the United States of aliens are subject to the full jurisdiction of the United States. And, as consistently recognized by courts and Attorneys General for over a century, most notably by the Supreme Court in United States v. Wong Kim Ark, (6) there is no question that they possess constitutional citizenship under the Fourteenth Amendment.
A. While the Constitution recognized citizenship of the United States in prescribing the qualifications for President, Senators, and Representatives, it contained no definition of citizenship until the adoption of the Fourteenth Amendment in 1868. Prior to that time, citizenship by birth was regulated by common law. And the common law conferred citizenship upon all persons (7) born within the territory of the United States, whether children of citizens or aliens. (8) The only common law exceptions to this generally applicable rule of jus soli were children born under three circumstances -- to foreign diplomats, on foreign ships, and to hostile occupying forces -- which, under principles of international law, were deemed not to be within the sovereignty of the territory. (9)
B. As the legislative history of the Civil Rights Act of 1866 and the Fourteenth Amendment makes clear, the definitions of citizenship contained in both were intended to codify the common law and overrule Dred Scott's denial of citizenship to persons of African descent. Thus, with the three limited exceptions already noted and the additional exception of tribal Indians, the Fourteenth Amendment guaranteed citizenship to all persons born in the United States, including children born to aliens.
The Civil Rights Act of 1866 provides that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." 1866 Act, § 1, 14 Stat. at 27. During the debates on the Act, the Chair of the House Judiciary Committee stated that the provision defining citizenship is "merely declaratory of what the law now is," and he cited, among other authorities, a quotation from William Rawle, whose constitutional law treatise was one of the most widely respected antebellum works: "Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity." (10)
The Fourteenth Amendment initially contained no definition of citizenship. Senator Howard of Michigan proposed to insert the definition that became the opening sentence of the Fourteenth Amendment:"This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. (11)"
He explained that this was not meant to include those discrete classes of persons excluded by the common law, "but will include every other class of persons."
The Framers intended the amendment to resolve not only the status of African-Americans and their descendants, but members of other alien groups as well. This is reflected in the exchange between Senators Trumbell and Conness, supporters of the Fourteenth Amendment and the Civil Rights Act, and Senator Cowan, a strong opponent of both. Senator Cowan expressed his reluctance to amend the Constitution in such a way as would "tie the[] hands" of the Pacific states "so as to prevent them . . . from [later] dealing with [the Chinese] as in their wisdom they see fit." (12) The supporters of the citizenship clause responded by confirming their intent to constitutionalize the U.S. citizenship of children born in the United States to alien parents.
"Senator Cowan . . . . I am really desirous to have a legal definition of 'citizenship of the United States.' What does it mean? . . . Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?
"Senator Conness . . . . The proposition before us . . . relates . . . to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. (13)
C. The constitutional guarantee of citizenship to children born in the United States to alien parents has consistently been recognized by courts, including the Supreme Court, and Attorneys General for over a century. Most notably, in United States v. Wong Kim Ark, (14) the Supreme Court held that a child born in San Francisco of Chinese parents (who, under the Chinese Exclusion laws then in effect, could never themselves become U.S. citizens) became at the time of his birth in the United States a citizen of the United States, by virtue of the Fourteenth Amendment.
The Court, in a detailed review of the Anglo-American common law of citizenship and the legislative history of the Fourteenth Amendment, established several propositions. First, because the Constitution does not define United States citizenship, it must be interpreted in light of the common law. Under the common law of England, which was adopted by the United States, every child born within the territory of alien parents was a natural-born subject, with the exception of children born of foreign ambassadors, of alien enemies during hostile occupation, and of aliens on a foreign vessel.
Further, "[a]s appears upon the face of the [Fourteenth] Amendment, as well as from the history of the times, [the amendment] was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect." Wong Kim Ark, 169 U.S. at 676. Specifically, the Court explained, "[t]he real object . . . in qualifying the words '[a]ll persons born in the United States', by the addition 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state -- both of which, . . . by the law of England, and by our own law, . . . had been recognized exceptions to the fundamental rule of citizenship by birth within the country." Id. at 682.
In concluding its review of the relevant law, the Court summarized:
"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." Id. at 693.
***
The principles set forth in Wong Kim Ark cannot be dismissed as having been overtaken by contemporary judicial interpretation or current events. Both the courts and commentators have consistently cited and followed the principles of Wong Kim Ark. (15)."
| CRS Annotated Constitution (also available at OneCLE, [Presidential] Qualifications) |
"All Presidents since and including Martin Van Buren were born in the United States subsequent to the Declaration of Independence. The principal issue with regard to the qualifications set out in this clause is whether a child born abroad of American parents is "a natural born citizen" in the sense of the clause. Such a child is a citizen as a consequence of statute.Whatever the term "natural born" means, it no doubt does not include a person who is "naturalized." Thus, the answer to the question might be seen to turn on the interpretation of the first sentence of the first section of the Fourteenth Amendment, providing that"[a]ll persons born or naturalized in the United States" are citizens. Significantly, however, Congress, in which a number of Framers sat, provided in the Naturalization act of 1790 that"the children of citizens of the United States, that may be born beyond the sea, . . . shall be considered as natural born citizens ...." This phrasing followed the literal terms of British statutes, beginning in 1350, under which persons born abroad, whose parents were both British subjects, would enjoy the same rights of inheritance as those born in England; beginning with laws in 1709 and 1731, these statutes expressly provided that such persons were natural-born subjects of the crown. There is reason to believe, therefore, that the phrase includes persons who become citizens at birth by statute because of their status in being born abroad of American citizens. Whether the Supreme Court would decide the issue should it ever arise in a "case or controversy" as well as how it might decide it "can only be speculated about."
| See Also ... (References to Treatises/Authorities - 1960-Present) |
--- See also "About Senate Resolution 511." for text of Senate Resolution 511 (2008) regarding John McCain's eligibility to be President.
--- "4 Charles Gordon et al., IMMIGRATION LAW AND PROCEDURE § 92.03[2][e] (rev. ed. 1995) (noting that any uncertainty regarding the applicability of the jus soli rule to children born in this country was "finally resolved by the Fourteenth Amendment and the Supreme Court's decision in U.S. v. Wong Kim Ark. There is now no doubt that the constitutional rule of universal citizenship for all persons born in the United States is unaffected by the status of their parents, except in minimal situations. Thus American citizenship is acquired by children born in the United States, even though their parents were always aliens, and even if the parents were themselves ineligible to become citizens of the United States. Nor has the acquisition of citizenship been affected by the circumstance that the child's alien parents were in the United States temporarily or even illegally at the time the child was born.") (footnotes omitted)." (as cited in Dellinger Statement, FN 15).
| OTHER SECONDARY SOURCES - Pre-1789 |
| OTHER SECONDARY SOURCES - from 1789-1868 |
| OTHER SECONDARY SOURCES - from 1868-1960 |
| Raleigh C. Minor, Address on the Citizenship of Individuals ..., PROCEEDINGS OF THE AMERICAN SOCIETY FOR INTERNATIONAL LAW (1910) |
Note: Mr. Minor was Professor at the University of Virginia (per above link).
[65]
"I. Citizenship of the United States.
This subject must be discussed with reference to two distinct periods in our history, the first, from the inception of the Constitution to the passage of the Fourteenth Amendment in 1868; the second, from the passage of the Amendment to the present.
The original Constitution had conferred upon Congress the express power to "establish an uniform rule of naturalization," and had declared that "no person except a natural-born citizen * * * shall be eligible to the office of President." It had also, in defining the eligibility of Senators and Representatives in Congress, declared that they shall have been "citizens of the United States" for a prescribed period. Thus, the Constitution itself recognized that there was a classification of citizens into natural-born and naturalized, but it nowhere defined who should be deemed citizens.
Where then was the government to look for a definition? The natural answer, in view of our system of municipal law, was to con-[66]sult the common law of England, to which we had been subject as Colonies, and to modify that by such legislative acts of Congress as might be needful to adapt it to our conditions. At least this was what was actually done, and the right of Congress, under the original Constitution, thus to modify the common-law doctrine as it might see fit, has never been seriously questioned.
The rule of the common law is that citizenship turns upon the place of birth, and that one born within the jurisdiction, even though of alien parents, is a citizen by birth, or, as the Constitution expresses it, a natural-born citizen; and this rule has been very generally recognized and enforced by all the departments of the government. United States v. Wong Kim Ark, 169 U. S. 655 et seq.; Lynch v. Clarke, 1 Sandf. Ch. (N. Y.) 583; 9 Ops. Atty.-Gcn. 373; 10 Id. 382, 394."[***discussion of adoption of 14th Amendment and its affect on "natural born citizenship at 68-69***]
[69] "Two conditions are required for the natural-born citizen: (1) that he be born in the United States; and (2) that he be subject to the jurisdiction thereof. The first of these is a mere question of fact, of which nothing need be observed save that it is provable like any other fact, and that it forever lays to rest the contention that a child born in a foreign country of American parents may be deemed a natural-born citizen. See United States v. Wong Kim Ark, 169 U. S. 687, 688, 702-703. But the second condition, that he be subject to the jurisdiction, involves some delicate and important points of international law and constitutional construction.The phrase, " subject to the jurisdiction," may refer to the obligation of political allegiance, or it may refer to the duty of obedience to the country's laws, or both.
***
[70] But what shall we do with the child born in this country of alien parents domiciled here, or, still worse for our peace of mind, of aliens here temporarily only ? The political allegiance of these strangers, especially the latter, is in the main due to their own country, not to ours, and their obligations to this country are for the most part fully discharged if they render obedience to its laws. Does this constitute them " subject to the jurisdiction " so far as to cause their children, born on American soil, to be deemed natural-born citizens of the United States?In the case of the child born here of aliens domiciled in this country, the Supreme Court has decided that he is a citizen, even though the parents, after his birth, take him back to their native country. In United States v. Wong Kim Ark, 169 U. S. 649, a child, born here of domiciled Chinese parents, was held a citizen, and as such entitled to enter the United States from China, despite the Chinese Exclusion Act.
And perhaps, since this decision seems to turn on the point that the phrase, " subject to the jurisdiction," refers only to the duty of obedience to the laws, not to political allegiance, the same ruling [71] should be made in case of children born in this country of aliens here temporarily only, for these owe a similar obedience to its laws, while here, as do their domiciled brethren. Prior to the Fourteenth Amendment it had been expressly so decided in New York, independently of any statute. Lynch v. Clarke, 1 Sandf. Ch. 583. See United States v. Wong Kim Ark, 169 TJ. S. 693, affirming 71 Fed. 382; United States v. Look Tin Sing, 21 Fed. 905.
***
[72] In respect of children born in this country of alien parents domiciled here, we have already seen that the phrase "subject to the jurisdiction " has been construed as referring to the obligation to obey our laws, and not to political allegiance. Are we now, with respect to these foreign-born children of Americans, to reverse our position and declare that the phrase refers to political allegiance, and not to subjection to local laws; and, if so, is it not begging the question to declare that such foreign-born children owe any allegiance to this country ? That would be to reason in a circle, for that is the very question involved in the determination of their citizenship. ...."
| Freedman, Presidential Timber: Foreign Born Children of American Parents, 35 Cornell.Q. 357, 364 (1950) |
"The framers of the Constitution did not limit eligibility for the Presidency to 'native-born citizens,' but used the broader term of 'natural born citizen' with its common law background."
| OTHER SECONDARY SOURCES - from 1960-Present |
| Lawrence Freedman, An Idea Whose Time Has Come--The Curious History, Uncertain Effect, and Need for Amendment of the "Natural Born Citizen" Requirement for the Presidency, 52 St. Louis U. L.J. 137, 143 (2007) |
"It is now generally assumed that the term "natural born" is synonymous with "native born." "It [therefore] is clear enough that native-born citizens are eligible [for the presidency] and that naturalized citizens are not." There is a general agreement among commentators, whether or not they are advocates of an originalist approach to constitutional interpretation, that "whether someone born of American parents abroad would be considered a natural born citizen" is an open question."
| Sarah Helene Duggin & Mary Beth Collins, 'Natural Born' in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution's Presidential Qualifications Clause and Why We Need to Fix It, 85 B.U. L. Rev. 53, 90-91 (2005) |
"United States citizens born to parents subject to United States jurisdiction in one of the fifty states are unquestionably natural born citizens. Even the narrowest reading of the Fourteenth Amendment dictates that all current states are in the United States. This is true regardless of parental citizenship, unless a child's parents are protected by the full immunity extended to foreign diplomats and their families, or they are enemy combatants."
| Christina S. Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 Gonz. L. Rev. 349, 359-63 (2000-01) |
"The Supreme Court in Wong Kim Ark set forth how the common law regarding citizenship evolved in America. Taken to its logical conclusion, the 1898 case held that an individual born abroad to American parents could not be deemed a "natural-born citizen." Although the Court did not specifically address the presidential Natural-Born Citizen Clause, it nevertheless made reference to the Clause and proceeded to explicate the 14th Amendment in light of the English common law.
***
The purpose of the Supreme Court delving into the English common law in Wong Kim Ark was to determine the citizenship status of a man born in California to citizens of China. In 1894, Wong Kim Ark left the United States for a visit to China, returning in 1895 only to be refused entry on the basis that he was not a citizen of the United States. Concluding that Wong Kim Ark was a United States citizen, the Court explained "[t]he fundamental principle of the common law with regard to English nationality was birth within the allegiance,"or jus soli. This principle meant that anyone born within British dominions was deemed a natural-born British subject, regardless of parentage."
The Court recognized two exceptions that existed for this rule. First, any child born to an alien enemy father engaged in hostile occupation of British territory was not a natural-born British subject. Second, any child born to an alien father who was an ambassador or diplomat of a foreign state was also excluded. The Court held fast to this interpreta-tion of the common law and quoted from numerous sources as well as American case law supporting the same. ....
***
The Court recognized that at the time of the framing of the United States Constitution and the adoption of the Fourteenth Amendment, other sovereigns held to a rule of jus sanguinis, allowing citizenship to pass by parentage. However, the Court was steadfast in its support of the British rule of jus soli whereby citizenship is acquired by country of birth. ....
***
The Court rejected arguments that English statutes enacted to grant inheritance rights to foreign born children of citizen parents were a pronouncement of the common law. Instead, the Court viewed these laws strictly as statutory enactments that allowed such children, generally children of the King, to inherit in Britain, but that had no applicability to U.S. citizenship.The Wong Kim Ark Court concluded that under English common law a child could be naturalized per statute, but "natural-born" status remained in the country of birth. It further deemed the United States to have accepted this position and made reference to a cabinet opinion provided to President Grant in 1873. This opinion came in response to several questions the President had posed regarding allegiance, naturalization, and expatriation. ..."
| Rogers M. Smith, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (Yale University Press, 1999) |
[13]
"Once, subjectship to the political ruler under whom one was born was believed to be natural ---sanctioned by divine will and rationally discoverable natural law. Persons who acquired allegience to a new ruler were therefore said to be "naturalized." .... [M]ost people still acquire American citizenship, implying allegience to the United States government, not by their consent but through an accident of birth, as in feudal England. ...
[130]
"There was a stronger sense at the convention that full political rights should be reserved to those whose loyalties could be trusted due to native birth or extensive domestic residence. That belief in the power of place of birth and inhabitancy to shape one's sense of politically identity and allegiance, however psychologically plausible, effective linked full citizenship to a person's position in an external physical order, not simply to political consent. Thus these requirements expressed emerging nativist outlooks more than republican or liberal ones.
The undebated provision that the President be "natural born" was, however, again ambiguous. As Madison observed in 1789, there were two conceptions of citizenship by birth available to the framers. Birth derived its "force" as a "criterian of allegiance ... sometimes from place," as in the common-law tradition of jus soli expounded by Coke and Blackstone, and "sometimes from parentage," from birth to one or more citizens, a position known as the jus sanguinis and endorsed by Vattel and Burlamaqui. Although these international law writers based membership on "mutual consent," they developed a non-Lockean view supporting birthright citizenship, perhaps out of concern about the impracticability of Lock's insistence that children were not members of any political community. They tried to obtain the advantages of older naturalistic views of membership by arguing that children should be treated as provisional members of their parents' society who were guaranteed the option of full membership at maturity if they so chose. The Swiss writers traced this guarantee to hypothetical consent, arguing that parents "are supposed to have stipulated" that their children have this option as a condition of thier own membership. Burlamaqui stated that children could thus gain citizenship "in the place of their parantage, or in their native country" -- unclear phrasing that might suggest that both citizens and resident aliens obtained this option for their children. Vattel said that children of resident aliens should be guaranteed only the status of their parents.
In the eighteenth century, most writers saw this international view of birthright citizenship, the jus sanguinis, as more consistent with consensual principles than Coke's feudal view of jus soli. But in keeping with the nativistic tone of the debate over these clauses, and not with the Constitution's predominant liberal republicanism, it was almost certainly the common-law criterion of place of birth that the delegates meant to install, as Madison later asserted. It thus perpetuated the older view of "natural" civic membership in a way that conformed to xenophobic sentiments."
| Jill A.Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881, at 881 and n. 2 (1988) |
"It is well settled that "native-born" citizens, those born in the United States, qualify as natural born." "Native-born citizens are natural born by virtue of the nearly universal principle of jus soli, or citizenship of place of birth." [881 and n.2].
".... It has never been suggested that Congress has the power to deny natural born status to native borns. Here it might be helpful to distinguish between the power to define the clause (e.g., to say that "natural born" means "born in California") and the power to naturalize from birth (to include additional classes of people within the scope of the clause). Congress has only the latter power under the Constitution. Thus Congress can expand the category of natural-born citizens to encompass more than simply native borns, but it may not contract the category below the native born minimum set by the Fourteenth Amendment." [892, n. 65].
| J. Michael Medina, The Presidential Qualification Clause in this Bicentennial Year: The Need to Eliminate the Natural Born Citizen Requirement, 12 Okla. City U.L. Rev. 253, 258-261 (1987) |
"Prior to adoption of the fourteenth amendment, the basic document contained no definition of citizenship or the methods of its acquisition. The naturalization clause of the Constitution gave Congress the power to enact a uniform rule of naturalization, but it set no standards. It was presumed that the English law of jus soli was incorporated into the law of the several former colonies and then into the Constitution. Under the law of jus soli, a person born in the United States became at birth a citizen of the United States. The opposing great principle of citizenship, the continental law of jus sanguinis, was congressionally enacted in the form of granting citizenship at birth to persons born of American citizens abroad, albeit with conditions and qualifications. The fourteenth amendment's citizenship clause constitutionally enacted a definition of the methods of acquiring citizenship. The clause provided that: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The clause therefore established two methods of citizenship: by birth in the United States and by naturalization.
The constitutional provision granting citizenship to all those born in the United States is subject to one important restriction: those so born must be subject to the jurisdiction of the United States. This reservation is narrow, and has been generally found to exclude four classes: (a) Indians belonging to tribal nations; (b) persons born to foreign diplomats and heads of state having diplomatic immunity; (c) persons born on American territory to members of occupying forces; and (d) persons born on foreign public vessels within United States territorial waters. While it is clear that persons born of aliens legally in this nation become American citizens," it has only been assumed, lacking any direct cases, that children of illegal aliens also become citizens at birth."
| Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1, at 7-8 (1968) |
"[T]he leading British authorities agree that under the early common law, status as a natural-born subject probably was acquired only by those born within the realm, but that the statutes .. enabled natural-born subjects to transmit equivalent status at birth to the children born to them outside of the kingdom . . . . There was no warrant for supposing that the Framers wished to deal less generously with their own children."
| McElwee, unpublished article reprinted in 113 Cong. Rec. 15,875 at 15,876 (1967) |
"It is clear that under the English common law this term 'natural born' meant 'native born.'... It was this genuine 'native-born' citizen ... to which the framers of the Constitution referred when they used the term 'natural-born citizens' as one of the qualifications for the President"
| See Also ... (References to Additional Other Secondary Sources) |
--- Lawrence B. Solum, Originalism and the Natural Born Citizen Clause [PDF], 107 Mich. L. Rev. First Impressions 22 (2008) (This article is one of several, which was part of a symposium on the NBC clause. You can access the other, related articles here.)
--- P.A. Madison, What "Subject to the Jurisdiction Thereof" Really Means - The Federalist Blog (2007, updated 2008) (disagreeing with the decision in Wong Kim Ark).
--- James C. Ho, Defining "American": Birthright Citizenship and the Original Understanding of the 14th Amendment, 9:4 The Green Bag, 366 (2006).
--- John W. Dean, A Fresh, Powerful Case for Amending the U.S. Constitution to Remove the "Natural Born" Qualification For the Presidency, FindLaw (2005).
--- Malinda L.Seymore, The Presidency and the Meaning of Citizenship, 2005 B.Y.U.L. Rev. 917, at 934-94 (2005).
--- John W. Dean, The Pernicious "Natural Born" Clause of the Constitution: Why Immigrants Like Governors Schwarzenegger and Granholm Ought to be Able to Become Presidents, FindLaw (2004).
--- John Yinger, No Americans Should Be Second-Class Citizens: Prepared Statement by John Yinger (Professor of Economics and Public Administration, Center for Policy Research, The Maxwell School, Syracuse University) Before the House Committee on the Judiciary Subcommittee on the Constitution, July 24, 2000.
--- "Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. Rev. 54, at 177 (1997)] (acknowledging that everyone born in the United States receives citizenship automatically)." [as cited in Duggin & Collins, at 90-91 and n.197] .
--- "Peter H. Schuck, The Re-evaluation of American Citizenship, 12 Geo. Immigr. L.J. 1, 4 (1997) (confirming that citizenship is extended to essentially all individuals born on United States soil)." [as cited in Duggin & Collins, at 90-91 and n.197] .
--- "Robert J. Shulman, Children of a Lesser God: Should the Fourteenth Amendment be Altered or Repealed to Deny Automatic Citizenship Rights and Privileges to American Born Children of Illegal Aliens?, 22 Pepp. L. Rev. 669, 674 (1995) (stating that Fourteenth Amendment guarantees citizenship to all people born in the United States)." [as cited in Duggin & Collins, at 90-91 and n.197].
--- "Note, The Birthright Citizenship Amendment: A Threat to Equality, 107 Harv. L. Rev. 1026, 1026 (1994) (stating that Fourteenth Amendment provides that all persons born in the United States and subject to its jurisdiction are citizens)." [as cited in Duggin & Collins, at 90-91 and n.197].
--- "David S. Schwartz, The Amorality of Consent, 74 Cal. L. Rev. 2143 (1986) (disagreeing with Schuck and Smith [cited below] on political and moral theory grounds)." [as cited in Duggin & Collins, at 90-91 and n.197]
--- "Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 4 at 6-7 (1985)] (arguing that some categories of people born in the United States should not be citizens)." [as cited in Duggin & Collins, at 90-91 and n.197].
Comments