Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

Qualifications for President and the “Natural

Born” Citizenship Eligibility Requirement

name redacted

Legislative Attorney

January 11, 2016

Congressional Research Service

7-....

www.crs.gov

R42097

Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

Summary

The Constitution sets out three eligibility requirements to be President: one must be 35 years of

age, a resident “within the United States” for 14 years, and a “natural born Citizen.” There is no

Supreme Court case which has ruled specifically on a challenge to one’s eligibility to be President

(although several cases have addressed the term “natural born” citizen), and this clause has been

the subject of several legal and historical treatises over the years, as well as more recent litigation.

The term “natural born” citizen is not defined in the Constitution, and there is no discussion of the

term evident in the notes of the Federal Convention of 1787. At the time of independence, and at

the time of the framing of the Constitution, however, the term “natural born” with respect to

citizenship was in use for many years in the American colonies, and then in the states, from

British common law and legal usage. Under the common law principle of jus soli (law of the

soil), persons born on English soil, even of two alien parents, were “natural born” subjects and, as

noted by the Supreme Court, this “same rule” was applicable in the American colonies and “in the

United States afterwards, and continued to prevail under the Constitution ...” with respect to

citizens. In textual constitutional analysis, it is understood that terms used but not defined in the

document must, as explained by the Supreme Court, “be read in light of British common law”

since the Constitution is “framed in the language of the English common law.”

In addition to historical and textual analysis, numerous holdings and references in federal (and

state) cases for more than a century have clearly indicated that those born in the United States and

subject to its jurisdiction (i.e., not born to foreign diplomats or occupying military forces), even to

alien parents, are citizens “at birth” or “by birth,” and are therefore “natural born”—as opposed to

“naturalized”—U.S. citizens. There is no provision in the Constitution and no controlling

American case law to support a contention that the citizenship of one’s parents governs the

eligibility of U.S. citizens born within the United States to be President.

Although the eligibility of U.S. born citizens has been settled law for more than a century, there

have been legitimate legal issues raised concerning those born outside of the country to U.S.

citizens. From historical material and case law, it appears that the common understanding of the

term “natural born” in England and in the American colonies in the 1700s included both the strict

common law meaning as born in the territory (jus soli), as well as the statutory laws adopted in

England since at least 1350, which included children born abroad to British fathers (jus sanguinis,

the law of descent). Legal scholars in the field of citizenship have asserted that this common

understanding and legal meaning in England and in the American colonies was incorporated into

the usage and intent of the term in the U.S. Constitution to include those who are citizens at birth.

Challenges in 2008 to the eligibility of both Senators John McCain and Barack Obama to be

President, and “ballot access” challenges to President Obama in 2012, have prompted numerous

court decisions which appear to have validated the traditional, historical, and legal meaning of the

term “natural born” citizen as one who is entitled to U.S. citizenship “by birth” or “at birth.” This

would include those born “in” the United States and under its jurisdiction (i.e. “native” born),

even those born to alien parents; those born abroad to U.S. citizen-parents; or those born in other

situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would

not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an

“alien” required to go through the legal process of “naturalization” to become a U.S. citizen.

This report has been updated from a previous version to include recent relevant judicial and

administrative decisions, and will be updated as new decisional material may warrant.

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Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

Contents

History of the Qualifications Clause in the Federal Convention of 1787........................................ 4

Procedural History .................................................................................................................... 4

Apparent Purpose and Intent ..................................................................................................... 5

Common Law Meaning of the Term “Natural Born” Citizen or Subject ........................................ 9

Common Law and the Constitution .......................................................................................... 9

Common Law and Persons Born “In” the Country .................................................................. 11

Common Law and Persons Born Abroad to Citizen-Parents .................................................. 14

Common Understanding in 18th Century of the Term “Natural Born” Citizen ............................. 16

Citizenship at Birth: Case Law and Interpretations ....................................................................... 25

Legal Background and Historical Cases ................................................................................. 25

Legal Cases and Birth Outside of the United States ............................................................... 33

Legal Cases and Birth Within the United States ..................................................................... 39

Allegations of Loss of Citizenship .................................................................................... 41

Dual Citizenship and Assertion of Two Citizen-Parent Requirement ............................... 42

Recent Eligibility and “Ballot Access” Cases ................................................................... 48

Conclusion ..................................................................................................................................... 50

Contacts

Author Contact Information .......................................................................................................... 51

Congressional Research Service

Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

T

he standing qualifications to be President of the United States are set out in the

Constitution, at Article II, Section 1, clause 5, and state three specific requirements: one

must be at least 35 years old, a resident “within the United States” for 14 years, and a

“natural born Citizen.” The constitutional provision states as follows:

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.

Questions from time-to-time have arisen concerning whether one who is a U.S. citizen “at birth”

because of the operation of federal law, is also a “natural born” citizen for purposes of the

presidential eligibility clause. Such questions often concern persons born abroad to parents who

are U.S. citizens, or persons born abroad when only one parent is a U.S. citizen who had resided

in the United States.1 Although such individuals born abroad may clearly be U.S. citizens “at

birth” by statute, would such persons also be “natural born Citizens,” or is eligibility to the

Presidency limited only to “native born” citizens?2 Additionally, questions have been recently

raised by some as to whether one born “in” the United States of one or more alien parents—and

who is thus clearly a U.S. citizen “at birth” by the Fourteenth Amendment, as well as by federal

law and common law—was intended to be considered a “natural born” citizen for purposes of the

presidential eligibility clause.

The Constitution does not define the term “natural born Citizen,” nor are the notes from the

debates at the Constitutional Convention of 1787 instructive as to any specific collective intent of

the framers concerning the meaning of the term. Furthermore, the Supreme Court has never

needed to address this particular issue within the specific context of a challenge to the eligibility

of a candidate under Article II, Section 1, clause 5, the only place in the entire Constitution that

the phrase appears, although federal courts have discussed the concept extensively with respect to

other issues of citizenship. Consequently, although there are numerous Supreme Court cases, as

well as other federal and state case law, discussing the phrase and its meaning from which

conclusions may be drawn, there has still been certain speculation on the scope of the language.

According to the Supreme Court, words and phrases used, but not defined, within the

Constitution, should generally “be read in light of British common law,” since the U.S.

Constitution is “framed in the language of the English common law.”3 Although the English

common law is not “binding” on federal courts in interpreting the meaning of words or phrases

within the Constitution, nor is it necessarily to be considered the “law” of the United States (as it

is for the individual states specifically incorporating it), it can be employed to shed light on the

concepts and precepts within the document that are not defined there, but which are reflected in

the corpus of British law and jurisprudence of the time. As noted by Chief Justice (and former

President) Taft, writing for a unanimous Supreme Court, the framers of the U.S. Constitution

1

See 8 U.S.C. §1401, for categories of persons who are deemed to be U.S. citizens “at birth.”

See, e.g., Means, Is Presidency Barred to Americans Born Abroad? U.S. NEWS AND WORLD REPORT, Vol. 39, No. 26,

December 23, 1955, at 26-30; Is Gov. George Romney Eligible to be President ? THE NEW YORK LAW JOURNAL,

October 16 and 17, 1967, p. 1; McCain’s Canal Zone Birth Prompts Queries About Whether That Rules Him Out, N.Y.

TIMES, February 28, 2008; Duggin and 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 BOSTON U. LAW

REV. 53 (2005).

3

Smith v. Alabama, 124 U.S. 465, 478 (1888). See also, more recently, Carmel v. Texas, 529 U.S. 513, 521 (2000),

where the Supreme Court noted that the meaning of an undefined term in the Constitution “necessarily requires some

explanation,” and that “the necessary explanation is derived from English common law well known to the Framers.”

2

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Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

“were born and brought up in” the English common law, they “thought and spoke in its

vocabulary,” and that English common law was thus what the “statesmen and lawyers of the

Convention” employed for the meaning of the terms in the Constitution “confident that they could

be shortly and easily understood.”4

The term “natural born” in the context of citizenship appears to derive from the British concept

that those born with a “natural liege” (allegiance, tie, or connection) to the nation or to the

sovereign, were (under English terminology) “natural born” subjects under the law in England

and in the American colonies at the time of independence. There appears to be little scholarly

debate that the English common law at the time of independence included at least all persons born

on the soil of England (jus soli, that is, “law of the soil”), even to alien parents, as “natural born”

subjects (unless the alien parents were diplomatic personnel of a foreign nation, or foreign troops

in hostile occupation). As noted by the Supreme Court of the United States, this “same rule” was

applicable in the colonies and “in the United States afterwards, and continued to prevail under the

Constitution” with respect to “natural born” U.S. citizenship.5

Although the British common law at the time of independence with regard to jus soli was

apparently clear, there were varying opinions as whether those born abroad of English subjects

were “natural born” subjects under the common law, or were considered “natural born” subjects

merely by long-standing statutory law. Some commentators have claimed that the statutory

provisions of English law, first appearing during the reign of Edward III in 1350, were

“incorporated” into, or in the alternative, “reflected” the already established English common

law.6 Regardless of the technical state of the common law in England with respect to children

born abroad, however, there appear to be significant arguments that the corpus of English law

applicable within the American colonies, known to the framers and adopted in the states, was

broader than merely the “law of the soil.” Legal commentators have contended that the body of

English law carried forward in the United States relating to citizenship included both the strict

common law notion of jus soli, as well as that part of the law of descent (jus sanguinis) included

in long-standing British law7 (including as “natural born” subjects those born abroad of an

English father), and that this was part of the “common understanding” of the term “natural born”

to the framers at the time of the drafting of the Constitution.8

Considering the history of the constitutional provision, the clause’s apparent intent, the English

common law expressly applicable in the American colonies and in all of the original states, the

4

Ex parte Grossman, 267 U.S. 87, 108-109 (1925).

United States v. Wong Kim Ark, 169 U.S. 649, 658 (1898). See also Inglis v. Sailor’s Snug Harbour, 3 Pet. (28 U.S.)

99, 120 (1830), see specifically Story, J., dissenting on other grounds, 28 U.S. at 164.

6

See discussion of controversy of whether the English common law included only those born on the soil, regardless of

the nationality of the parents (jus soli), or whether the common law also included those born abroad of an English

father (jus sanguinis), in Flourny, Richard W. (Assistant Solicitor, Department of State), Dual Nationality and Election,

30 YALE LAW JOURNAL 545, 548 (1921).

7

See Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, Volume I, “Of the Rights of Persons,” 354-358, 361

(1765): “ ... by several more modern statutes ... all children, born out of the king’s ligeance, whose fathers were naturalborn 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.” As noted by the Supreme Court in Weedin v. Chin Bow, 274 U.S. 657, 660 (1926): “These statutes

applied to the colonies before the War of Independence.” For early references to the term natural liege subjects in the

American colonies, see Sydney George Fisher, THE EVOLUTION OF THE CONSTITUTION OF THE UNITED STATES,

(Lippincott 1897) at 189, citing the Virginia Charter of 1611-1612, and the Concessions of East Jersey, 1665.

8

See, for example, Charles Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 MD. L.

REV. 1, 12, 18 (1968). Charles Gordon was formerly General Counsel of the United States Immigration and

Naturalization Service.

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common use and meaning of the phrase “natural born” subject in England and the American

colonies in the 1700s, and the subsequent action of the first Congress in enacting the

Naturalization Act of 1790 (expressly defining the term “natural born citizen” to include those

born abroad to U.S. citizens),9 it appears that the most logical inferences would indicate that the

phrase “natural born Citizen” would mean a person who is entitled to U.S. citizenship “by birth”

or “at birth.” Such interpretation, as evidenced by over a century of American case law, would

include as natural born citizens those born in the United States and subject to its jurisdiction

regardless of the citizenship status of one’s parents,10 and would also appear to include those born

abroad of one or more parents who are U.S. citizens (as recognized by statute),11 as opposed to a

person who is not a citizen by birth and is thus an “alien” required to go through the legal process

of naturalization to become a U.S. citizen.12

The weight of scholarly legal and historical opinion, as well as the consistent case law in the

United States, also supports the notion that “natural born Citizen” means one who is a U.S.

citizen “at birth” or “by birth.”13 The Constitution of the United States of America, Analysis and

9

Act of March 26, 1790, 1 Stat. 103, 104.

U.S CONST. amend. XIV; 8 U.S.C. §1401(a); see Lynch v. Clarke, 3 N.Y. Leg. Obs. 236, 242, 244 (1 Sand. ch. 583)

(1844); United States v. Rhodes, 27 F. Cas. 785 (1 Abb. 28) (Cir.Ct.Ky 1866); In re Look Tin Sing, 21 F. 905 (Cal. Cir.

1884); United States v. Wong Kim Ark, 169 U.S. 649, 658, 661-662, 693 (1898); Kwock Jan Fat v. White, 253 U.S.

454, 457 (1920); Dos Reis ex rel. Camara v. Nicholls, 68 F. Supp. 773,774 (D.Mass. 1946); Yamauchi v. Rogers, 181

F. Supp. 934, 935-936 (D.D.C. 1960); Diaz-Salazar v. INS, 700 F.2d 1156, 1160 (7th Cir. 1982), cert. denied, 462 U.S.

1132 (1983); Mustata v. U.S. Department of Justice, 179 F.3d 1017, 1019 (6th Cir. 1999); Hollander v. McCain, 566

F.Supp.2d 63, 66 (D.N.H. 2008); Ankeny v. Governor of the State of Indiana, 916 NE2d 678 (2009), petition to

transfer jurisdiction denied (Ind. Supreme Court, April 5, 2010); United States v. Carlos Jesus Marguet-Pillado, 648

F.3d 1001, 1006 (9th Cir. 2011); Allen v. Arizona Democratic Party, Case No. C-20121317 (Arizona Superior Court,

Pima County, March 7, 2012); Voeltz v. Obama, No. 2012-CA-00467 (Circuit Ct. for Leon County, June 29, 2012);

Fair v. Obama, No. 06C12060692 (Md. Carroll Cty. Cir. Ct., Aug. 27, 2012); Paige v. Obama, No. 611-8-12 WNCV

(Vt. Superior Ct., Sept. 21, 2012); Purpura v Obama, No. STE 04588-12, 2012 WL 1369003 (N.J. Adm. Apr. 10,

2012), decision adopted as final (N.J. Sec’y of State Apr. 12, 2012) aff’d, No. A-004478-11-T03, 2012 WL 1949041

(N.J. Super. Ct. App. Div. May 31, 2012) (per curiam), cert. denied, No. 071052 (N.J. Sept. 7, 2012); Tisdale v.

Obama, No. 3: 12-cv-00036 (E.D. Va. Jan. 23, 2012), aff’d, No. 12-1124 (4th Cir. June 5, 2012) (per curiam).

11

See, e.g.,, 8 U.S.C. §1401(c),(d),(e) and (g); Robinson v. Bowen, 567 F.Supp.2d 1144, 145-146 (N.D. Cal. 2008);

United States v. Carlos Jesus Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011).

12

Schneider v. Rusk, 377 U.S. 163, 165 (1964); Elk v. Wilkins, 112 U.S. 94, 101 (1884); Knauer v. United States, 328

U.S. 654, 658 (1946).

13

Edward S. Corwin, THE PRESIDENT, OFFICE AND POWERS, 1787-1984, at 38-39 (5th Revised ed. by Bland, Hindson,

and Peltason, 1984); James H. Kettner, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870 (U.N.C. Press 1978);

Gordon, Mailman, & Yale-Loehr, IMMIGRATION LAW AND PROCEDURE, §§91 and 92 (rev. ed. 2010); Jill Pryor, The

Natural Born Citizen Clause and Presidential Eligibility: An Approach to Resolving Two Hundred Years of

Uncertainty, 97 YALE L.J. 881 (1988); Charles Gordon, Who Can Be President of the United States: The Unresolved

Enigma, 28 MD. L. REV. 1 (1968); Richard W. Flourny, (Assistant Solicitor, Department of State), Dual Nationality

and Election, 30 YALE LAW JOURNAL 545, 550 (1921); Michael Nelson, Constitutional Qualifications for President,

PRESIDENTIAL STUDIES QUARTERLY, Vol. XVII, Number 2, at 384-391 (Spring 1987); Warren Freedman, Comment,

Presidential Timber: Foreign Born Children of American Parents, 35 CORNELL L.Q. 357 (1950); Frederick Van Dyne

(Assistant Solicitor of the Department of State), CITIZENSHIP OF THE UNITED STATES (New York 1904); J. Michael

Medina, The Presidential Qualification Clause in the Bicentennial Year: The Need to Eliminate the Natural Born

Citizen Requirement, XII OKLA. CITY UNIV. L. R. 253, 268 (1987); Paul Clement and Neal Katyal, On the Meaning of

“Natural Born Citizen,” 128 HARVARD LAW REV. FORUM 161 (2015); Akil Amar, Natural Born Killjoy, Why the

Constitution Won’t Let Immigrants Run for President, and Why That Should Change, LEGAL AFFAIRS, 16, 17 (MarchApril 2004): “... the presidency and vice presidency were reserved for citizens by birth.” For the opposing view, see

Isidor Blum, Is Gov. George Romney Eligible to Be President?, N.Y.L.J., October 16 & 17, 1967, at 1, which contends

that only those born “in” the United States are “natural born” citizens under common law principles. In another

analyses, one author would include the children of U.S. citizens who are born abroad when one or both of the parents

are abroad under the direction of and officially representing, or on duty for, the United States Government, either in the

military or in a civilian governmental role. Christina Lohman, Presidential Eligibility: The Meaning of the Natural(continued...)

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Interpretation, notes that “[w]hatever the term ‘natural born’ means, it no doubt does not include

a person who is ‘naturalized,’” and, after discussing historical and legal precedents and

arguments, concludes that “[t]here is reason to believe ... that the phrase includes persons who

become citizens at birth by statute because of their status in being born abroad of American

citizens.”14

History of the Qualifications Clause in the Federal

Convention of 1787

Procedural History

The particular clause concerning presidential eligibility and citizenship was placed in the

Constitution and approved at the Convention of 1787 with no debate, objection, or comment. The

five-person Committee of Detail, appointed by the Convention delegates to report a draft

Constitution containing issues and items agreed upon by the Convention up to that point,15 was

instructed by the Convention, on July 26, 1787, to consider provisions requiring certain

qualifications for Congress and the Presidency.16 Although the subsequent report on August 6

from the Committee of Detail contained qualifications for Senator and Representative, it did not

offer qualifications for President.17 On August 20, the Convention adopted a motion by Mr. Gerry

of Massachusetts that the “Committee be instructed to report proper qualifications for the

President ...,”18 and on August 22, the Committee of Detail reported its recommendation that

several additions be made to the report it had made, including the following concerning the

qualifications of the President: “[H]e shall be of the age of thirty five years, and a Citizen of the

United States, and shall have been an Inhabitant thereof for Twenty one years.”19 The report of

the Committee of Detail was then “considered” and “postponed” on August 22, so “that each

member might furnish himself with a copy.”20

In the subsequent days, the provisions for the qualifications of President were not taken up and

thus not agreed upon by the whole Convention, and on August 31, 1787, the delegates agreed to

“refer such part of the Constitution as have been proposed, and such parts of reports as have not

(...continued)

Born Citizen Clause, 36 GONZAGA LAW REVIEW 349, 369 (2000/2001).

14

Congressional Research Service, Library of Congress, THE CONSTITUTION OF THE UNITED STATES OF AMERICA,

ANALYSIS AND INTERPRETATION, S. Doc. 108-17, at 456-457 (2004). [CONSTITUTION ANNOTATED]. The United States

Senate has also stated its opinion by way of unanimous consent, in S.Res. 511, 110th Congress, that natural born

citizens includes those persons born abroad of U.S. citizens.

15

Max Farrand, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, Vol. II, at 85, 97 (Yale University Press 1911)

[hereinafter Farrand]. On Monday July 23, 1787, the Convention delegates unanimously agreed to appoint the

committee “for the purpose of reporting a Constitution conformably to the Proceedings aforesaid ....”

16

II Farrand, at 116-117, 121-125. The instruction was to draft provisions “requiring certain qualifications of landed

property and citizenship in the United States for the Executive, the Judiciary, and the Members of both branches of the

Legislature of the United States ....,” although the word “landed” was removed upon agreement of a motion by Mr.

Madison of Virginia to strike out that word (and thus that qualification). Id. at 123-124.

17

Id. at 177-179, 185.

18

Id. at 337, 344.

19

Id. at 366-367.

20

Id. at 376.

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Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

been acted upon to a Committee of a Member from each State,”21 which has been referred to as

the (third) “Committee of Eleven,” or the “Committee on Postponed Matters.” On Tuesday,

September 4, 1787, the (third) Committee of Eleven “partially” reported to the Convention

several “additions and alterations,” including the specific reference for the first time to a

presidential qualification to be a “natural born” citizen:

No Person except a natural born Citizen, or a Citizen of the U.S. at the time of the

adoption of this Constitution shall be eligible to the office of President: nor shall any

Person be elected to that office, who shall be under the age of 35 years, and who has not

been in the whole, at least 14 years a resident within the U.S. 22

The language proposed on presidential eligibility on September 4 was agreed to without objection

and without debate on Friday, September 7, 1787.23 Stylistic and grammatical changes were made

through the Committee of Style to the clause on presidential qualifications to conform to the other

phrasing and usage in the document, which resulted in the final language adopted by the delegates

and sent to the states for ratification.24

Apparent Purpose and Intent

Tracing the development of this clause through the Federal Convention of 1787 clearly indicates

that there were no specific discussions or other explications within the Convention on the

meaning of the specific term “natural born” citizen. This does not mean, however, that there were

no discussions at all of the concept of a citizenship qualification for federal officers. In fact, the

issue of citizenship for Members of Congress was one that garnered much consideration and

debate in the Convention of 1787 and, it has been contended, it is within the framework of this

discussion that the eventual citizenship eligibility requirement was adopted for President and may

be analyzed.25

In stating concerns regarding the citizenship of congressional officeholders, and the required

length of such citizenship, George Mason argued that although he “was for opening a wide door

for immigrants; ... [h]e did not chuse to let foreigners and adventurers make laws for us”; nor

would he want “a rich foreign Nation, for example Great Britain, [to] send over her tools who

might bribe their way” into federal office for “invidious purposes.”26 These arguments were

echoed later by delegates at the Convention who were concerned with “admitting strangers into

our public Councils,”27 and feared that “foreigners without a long residency in the Country ...

bring with them, not only attachments to other Countries; but ideas of Govt. so distinct from ours

that in every point of view they are dangerous.”28 Thus, citizenship requirements of seven years

for Representatives and nine years for Senators were eventually adopted, although the

Convention did not act upon the wishes of Mr. Gerry “that in the future the eligibility might be

21

Id. at 473.

Id. at 493-494, 498.

23

According to Madison’s notes: “The (section 2.) ... requiring that the President should be a natural-born Citizen, &c

& have been resident for fourteen years, & be thirty five years of age, was agreed to nem: con:” II Farrand, at 536.

24

II Farrand, at 574, 598.

25

See discussion in Michael Nelson, Constitutional Qualifications for President, PRESIDENTIAL STUDIES QUARTERLY,

Vol. XVII, Number 2, at 384-391 (Spring 1987).

26

II Farrand, at 216.

27

Id. at 235 (Mr. Morris).

28

Id. at 236 (Mr. Butler).

22

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Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

confined to Natives.”29 When the citizenship eligibility requirements for President were

eventually reported and recommended after the debates and discussion of congressional eligibility

requirements, there were no further discussions of the issue in Convention.30

Although there was no discussion concerning the precise meaning or derivation of the term

“natural born,” there is in the Documentary History of the Convention a possible clue from where

the qualification for President to be a “natural born” citizen may have derived. The history of the

Convention indicates that George Washington, the presiding officer, received a letter dated July

25, 1787, from John Jay, which appears to raise for the first time the issue of a requirement to be

a “natural born” citizen of the United States as a requisite qualification to be President:

Permit me to hint, whether it would not be wise & seasonable to provide a strong check

to the admission of Foreigners into the administration of our national Government; and to

declare expressly that the Command in chief of the american army shall not be given to,

nor devolve on, any but a natural born Citizen.31

There is no specific indication as to the precise role this letter and its “hint” actually played in the

adoption by the Convention of the particular qualification of being a “natural born” citizen.

However, no other expressions of this particular term are evident in Convention deliberations

prior to the receipt of Jay’s letter, and the September 4 draft of the Constitution reported from the

Committee of Eleven to the delegates, at a time shortly after John Jay’s letter had been

acknowledged by Washington, contained for the first time such a qualification.32 The timing of

Jay’s letter, the acknowledgment of its receipt by Washington on September 2, and the first use of

the term in the subsequent report of the Committee of Eleven, on September 4, 1787, may thus

indicate more than a mere coincidence. If this were the case, then the concern over “foreigners,”

without sufficient allegiance to the United States, serving as President and Commander-in-Chief,

would appear to be the initial and principal motivating concern of the framers, in a somewhat

similar vein as their concerns over congressional citizenship qualifications.33

Such purpose of the “natural born” citizen qualification was expressed by Justice Joseph Story in

his historic treatise on the Constitution in 1833:

It is indispensable, too, that the president should be a natural born citizen of the United

States ... [T]he 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

29

Id. at 268. Mr. Gerry stated his fear that “Persons having foreign attachments will be sent among us & insinuated into

our councils, in order to be made instruments for their purpose.”

30

Presidential scholar Michael Nelson explains that when the qualifications of electors were not to be regulated or

prescribed by the Constitution, then the qualifications of the elected needed to be so prescribed. In the case of the

President, however, the Convention at first had intended under the Virginia Plan that the President be chosen by the

legislature, and thus it did not focus on the need for express qualifications of the President until later in the Convention.

Nelson, PRESIDENTIAL STUDIES QUARTERLY, at 392-393.

31

III Farrand, Appendix A, LXVIII, at 61 (emphasis in original); Documentary History of the Constitution, IV, at 237.

32

A letter from Washington to John Jay on September 2, 1787, references Jay’s “hint” and suggestion to Washington.

III Farrand, Appendix A, XCIX, at 76; Documentary History Of the Constitution, IV, 269.

33

The provision was not directed at foreign-born statesmen or politicians in the country at the time of the drafting of

the Constitution, such as Alexander Hamilton who was born in the Caribbean, since the eligibility clause expressly

“grand-fathered” in those who were citizens at the time of the adoption of the Constitution. Hamilton, in any event,

supported the idea of limiting the eligibility to be President to a current citizen, or thereafter one who is “born a Citizen

of the United States.” III Farrand, at App. F, p. 629.

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against those corrupt interferences of foreign governments in executive elections, which

have inflicted the most serious evils upon the elective monarchies of Europe. 34

“Ambitious foreigners” who may be “intriguing for the office” of head of state, which had been

the unfortunate experience in Europe, appeared to be a generalized and widespread concern at the

time of the drafting of the Constitution, as was the concern over the possibility of allowing

foreign royalty, monarchs, and their wealthy progeny, or other relatives to control the government

of the new nation. Max Farrand, in his treatise on the adoption of the Constitution, discussed

these concerns and rumors during the Convention of 1787:

During the sessions of the convention, but it would seem especially during the latter part

of August, while the subject of the presidency was causing so much disquiet, persistent

rumors were current outside that the establishment of a monarchy was under

consideration. The common form of the rumor was that the Bishop of Osnaburgh, the

second son of George III, was to be invited to become King of the United States. 35

Others have noted that rumors were extant concerning colonial statesmen approaching or making

inquiries of other foreign royalty about seeking the chief executive’s position of the United States,

including rumors involving Price Henry of Prussia, and the ascension of King George’s second

son, Frederick, Duke of York. Presidential scholar Michael Nelson has commented:

The presidency they were creating was, the framers realized, the closest analog in the

new constitution to a king, just by being a separate, unitary executive. Even before the

convention assembled, von Steuben had disseminated a rumor that Nathaniel Gorham,

president of Congress under the Articles of Confederation and a convention delegate

from New Hampshire, had approached Prince Henry of Prussia about serving as

America’s King. Similar stories involved the ascendancy of King George’s second son,

Frederick, Duke of York. During the summer, these rumors gained new currency. The

story spread that the convention, whose deliberations were secret, was advancing the plot

behind closed doors.36

The question of not only “foreign influence” of wealthy persons immigrating to the United States

to become President, but also the issue of an American monarchy, were thus very real concerns of

the populace, as well as the framers, and appeared to establish the context in which the role,

qualifications, duties, and powers of an American chief executive were developed.37 As noted by

constitutional scholar Akhil Amar, the concerns and anxieties over ambitious and duplicitous

foreigners, and the “possibility that a foreign earl or duke might cross the Atlantic with immense

wealth and a vast retinue, and then use his European riches to buy friends on a scale that no

home-grown citizen could match,” led the framers to incorporate Article II’s “most questionable

eligibility rule.”38 Amar also agrees that the framers’ aversion to hereditary monarchies appeared

34

Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, Vol. 3, §1473, pp. 332-333 (1833).

Story distinguished “natural born” citizens eligible to be President from “foreigners” who are generally excluded,

noting the exception only for a “naturalized citizen to become president” when such person was a citizen at the time of

the adoption of the Constitution “out of respect for those distinguished revolutionary patriots, who were born in a

foreign land, and yet had entitled themselves to high honors in their adopted country.” Story, at §1473, pp. 332-333.

35

Max Farrand, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES, 173 (Yale University Press 1913).

36

Nelson, PRESIDENTIAL STUDIES QUARTERLY, at 395.

37

“The Framers had no antecedent to draw upon when creating the presidency and determining the qualifications for

the office. There was no executive officer under the Articles of Confederation. The Framers’ only model was a negative

one: they wanted an executive officer who would not have the attributes of a hereditary monarch.” Lawrence Freidman,

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 L.J. 137, 141 (Fall 2007).

38

Akhil Reed Amar, AMERICA’S CONSTITUTION, A BIOGRAPHY, at 164 (Random House 2005).

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to play an additional role in erecting a barrier to immigrants being President within the

Constitution—a document that was otherwise, for its time, enlightened as permitting immigrants

to weave their way into the fabric of American political and social life:

These anxieties had been fed by England’s 1701 Act, which inclined early Americans to

associate the very idea of a foreign-born head of state with the larger issue of monarchial

government. Though England banned foreigners from all other posts, it imposed no

natural-born requirement on the head of state himself. In fact, the 1701 Act explicitly

contemplated foreign born future monarchs—the German House of Hanover, in

particular. By 1787 this continental royal family had produced three English kings named

George, only the third of whom had been born in England itself. Article II’s natural-born

language squarely rejected the 1701 idea of future foreign-born heads of state, in no small

part because many republicans had come to link the idea (perhaps more sociologically

than logically) with hereditary succession and foreign intrigue. Foreign-born princes

might be good enough to rule in the Old World but should be kept out of the New World

order—or at least the New World presidency.39

The apparent purposes of this citizenship clause were thus to assure the requisite fealty and

allegiance to the nation from the person to be the chief executive of the United States, and to

prevent wealthy foreign citizens, and particularly wealthy foreign royalty and their relatives, from

coming to the United States, becoming naturalized citizens, and then scheming and buying their

way into the Presidency or creating an American monarchy. The possibility of satisfying these

purposes would appear to be as likely from an interpretation of the term “natural born” citizen

which would include one who is a citizen “at birth” by either common law principles of jus soli,

that is, being born on the soil, or by the operation of statutory law of the principles of jus

sanguinis, that is, through the law of descent by being born to U.S. citizens abroad. That is, one

who is a citizen of the United States “at birth” by descent under federal law could develop the

requisite allegiances and reverences for the United States passed down, inculcated, and taught by

one’s parent-citizens, and would have a lifetime of allegiance to the United States at least as

strong, in a theoretical sense, as one who was born a citizen within the geographic boundaries of

the country.40 Those who are born “in” the country, and who are subject to its jurisdiction,

regardless of the nationality or citizenship of their parents, have always under British common

law, as well as under the laws of the original states, and then the United States since its founding,

been considered to have the “natural” allegiance and ties to the nation.41

39

Id. at 165.

See Tuan Anh Nguyen v. INS, 533 U.S. 53, 64-65 (2001): Citizenship statutes requiring certain relationships of

children born abroad to U.S. citizen parent or parents are adopted “… to ensure that the child and the citizen parent

have some demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal

matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen

parent and, in turn, the United States.” See also Miller v. United States, 523 U.S. 420, 438-440 (1998) noting the

interest of “fostering ties with this country ….”

41

See Kettner, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 287 (UNC Press 1978): “No one appeared

to re-examine and justify Coke’s idea of the ‘natural-born citizen.’ Americans merely continued to assume that ‘birth

within the allegiance’ conferred the status and its accompanied rights. Natives were presumably educated from infancy

in the values and habits necessary for self-government, and there was no need to worry about their qualifications for

membership.” See also discussion in Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, Volume I, “Of the Rights

of Persons,” 354, 357-358 (1765).

40

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Common Law Meaning of the Term “Natural Born”

Citizen or Subject

Common Law and the Constitution

If the term “natural born” with respect to citizenship conveyed a concept clearly within the

English common law, there would then be a strong implication that such term and its legal

meaning would either have been incorporated into, or at least would strongly influence the

framers in using such phrase, as well as subsequent interpretive construction by the courts of the

relevant provision of the U.S. Constitution.42 As noted by the Supreme Court,

There is, however, one clear exception to the statement that there is no national common

law. The interpretation of the Constitution of the United States is necessarily influenced

by the fact that its provisions are framed in the language of the English common law, and

are to be read in the light of its history. 43

Many of the terms used in the U.S. Constitution were not specifically defined in that document

(such as “natural born” citizen, the privilege of the writ of “habeas corpus,” and the prohibitions

against “bills of attainder” and “ex post facto” laws, for example), and thus referral to the English

common law, “well known” to the framers and applicable in the American colonies, must be

made for a definitional reference for such terms. The Supreme Court has explained with reference

to the constitutional prohibition on “ex post facto” laws, for example, that the meaning of such

term, not defined in the Constitution, requires some explanation, and that “the necessary

explanation is derived from English common law well known to the Framers”:

The proscription against ex post facto laws “necessarily requires some explanation; for,

naked and without explanation, it is unintelligible, and means nothing.” Calder v. Bull, 3

Dallas 386, 390 (1798) (Chase, J.). In Calder v. Bull, Justice Chase stated that the

necessary explanation is derived from English common law well known to the Framers:

“The expressions ‘ex post facto laws,’ are technical, they had been in use long before the

Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and

Authors.” Id. at 391; see also id. at 389.44

Similarly, Chief Justice (and former President) Taft explained (in a Supreme Court decision

dealing with the parameters of the offenses to which the “pardon” authority of the President

extends) that the meaning of the language and phrases in the Constitution, when they are not

specifically defined in that document, can only be discerned and interpreted by reference to the

British common law in place at the time of the drafting of the Constitution. The Chief Justice,

writing for a unanimous Court, found that the British common law was what the framers “were

born and brought up in,” that the framers “thought and spoke in its vocabulary,” and was thus

what the “statesmen and lawyers of the Convention” employed for the meaning of the terms in

the Constitution “confident that they could be shortly and easily understood”:

The language of the Constitution cannot be interpreted safely except by reference to the

common law and to the British institutions as they were when the instrument was framed

42

Ex parte William Wells, 18 Howard (59 U.S.) 307, 311 (1855); Moore v. United States, 91 U.S. 270, 274 (1875);

Smith v. Alabama, 124 U.S. 465, 478 (1888); United States v. Wong Kim Ark, 169 U.S. 649, 654-655 (1898); Ex parte

Grossman, 267 U.S. 87, 108-109 (1925); Carmel v. Texas, 529 U.S. 513, 521 (2000).

43

Smith v. Alabama, 124 U.S. at 478.

44

Carmel v. Texas, 529 U.S. at 521 (Emphasis added).

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and adopted. The statesmen and lawyers of the Convention who submitted it to the

ratification of the Conventions of the thirteen States, were born and brought up in the

atmosphere of the common law, and thought and spoke in its vocabulary. They were

familiar with other forms of government, recent and ancient, and indicated in their

discussions earnest study and consideration of many of them, but when they came to put

their conclusions into the form of fundamental law in a compact draft, they expressed

them in terms of the common law, confident that they could be shortly and easily

understood.45

Justice Joseph Story explained in his celebrated work on the United States Constitution,

Commentaries on the Constitution, that the British common law formed the “foundation” upon

which American jurisprudence stands:

The universal principle (and the practice has conformed to it) has been that the common

law is our birthright and inheritance, and that our ancestors brought hither with them

upon their emigration all of it, which was applicable to their situation. The whole

structure of our present jurisprudence stands upon the original foundations of the

common law.46

The British common law was, in fact, regularly adopted or recognized as in force expressly in the

constitutions, or in the early acts of the legislatures, of the original thirteen states after

independence had been declared in July of 1776. The original Constitution of Delaware, for

example, stated,

The common law of England, as-well as so much of the statute law as has been

heretofore adopted in practice in this State, shall remain in force, unless they shall be

altered by a future law of the legislature; such parts only excepted as are repugnant to the

rights and privileges contained in this constitution, and the declaration of rights, &c.,

agreed to by this convention. 47

The experience and the wording of the constitutions, or original statutes, adopted in most of the

other original states were similar to that of Delaware quoted above.48 Those immediately involved

in framing constitutions for the states in the 1770s, many of whom were also prominent in

framing the Constitution for the United States in 1787, were thus not only intimately familiar

with, but also expressly recognized the continued application of the British common law within

this country.

45

Ex parte Grossman, 267 U.S. 87, 108-109 (1925). See also Ex parte William Wells, 18 Howard (59 U.S.) 307, 311

(1855): “Prior to the revolution, the colonies, being in effect under the laws of England, were accustomed to the

exercise of it in the various forms, as they may be found in the English law books. They were, of course, to be applied

as occasions occurred, and they constituted a part of the jurisprudence of Anglo-America. At the time of the adoption

of the constitution, American statesmen were conversant with the laws of England …. We must then give the word the

same meaning as prevailed here and in England at the time it found a place in the constitution.”

46

Justice Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, Vol. I, §157, p. 140 (1833).

47

Constitution of Delaware, 1776, Article 25.

48

See, for example, similar language in the Constitution of New Jersey, 1776, Article XXII; Constitution of Maryland,

November 11, 1776, Declaration of Rights, paragraph III; Constitution of New York, April 20, 1777, Article XXXVl;

Laws of Virginia, July 3, 1776, Ch. 38. Interestingly, the Constitution of Massachusetts, the colony in which the armed

rebellion began, did not mention “England” or “Great Britain” in its adoption of “[a]ll the laws which have heretofore

been adopted, used and approved in … Massachusetts, … and usually practiced on in the courts of law,” but which, as

recognized in case law in Massachusetts, referred, of course, to the British common law. Constitution of Massachusetts,

1780, Pt. 2, C. 6, Art. 6; see, e.g., Com. v. Leach, 1 Mass. 59 (1804); Com. v. Knowlton, 2 Mass. 530 (1807); Pearce v.

Atwood 13 Mass. 324 (1816); Sackett v. Sackett, 25 Mass. 309 (1829); Boynton v. Rees, 26 Mass. 528 (1830); Com. v.

Churchill, 43 Mass. 123 (1840); Com. v. Rowe 257 Mass. 172 (1926); Com. v. Lopes 318 Mass. 453 (1945).

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Similar to the concept expressed in the original constitutions and enactments of the new states,

Justice Story has also noted in a Supreme Court decision that we did not necessarily, however,

adopt all of the British common law, but rather adapted it to our own situation.49 An analysis of

the term “natural born” citizen which begins with the British common law meaning of the phrase

might thus not necessarily end there, but must also take into consideration the unique American

experience, and the application and interpretation of the underlying concepts involved by the

courts in the United States. 50

Common Law and Persons Born “In” the Country

There appears to be very little scholarly or legal dispute as to the British common law applicable

in England and in the American colonies with respect to those born “on the soil.” As to those

children born in the geographic boundaries of the country, even of alien parents, the Supreme

Court of the United States in United States v. Wong Kim Ark, citing the British decision in

Calvin’s Case reported by Lord Coke,51 found that such persons were, under British common law,

considered “natural born” subjects (with minor exceptions for children born of foreign diplomatic

personnel or of hostile military forces in occupation, that is, those not “under the jurisdiction” of

that host country). This rule of law, noted the Court, applied to the American colonies at the time

of the Declaration of Independence and, significantly, “in the United States afterwards, and

continued to prevail under the Constitution ....”52

The premiere treatise on British law at the time of the drafting of the Constitution, which was

well-known and well-used in the colonies, was Blackstone’s Commentaries on the Laws of

England (1765). Blackstone explained that “[t]he first and most obvious division of the people is

into aliens and natural-born subjects,”53 and that the “natural” allegiance due of “natural-born”

subjects, as opposed to merely “local” allegiance of aliens and sojourners, “is such as is due from

all men born within the king’s dominions immediately upon their birth.”54 Blackstone traced the

development of the concept of “natural-born” allegiance to the reciprocal duties of protection and

allegiance (fealty, or “ligamen” (tie)), that developed concerning land ownership and use under

49

Van Ness v. Pacard, 27 U.S. [2 Peters] 137, 143-144 (1829).

One Court of Appeals has noted, for example, that the British common law with respect to “natural born” subjects as

those born within the entire “realm” of the British Empire, was not necessarily imported wholly into American

jurisprudence, as those born in the possessions of the United States, or in unincorporated territories, such as in the

Philippines, would not be “natural born” citizens of the United States, as they had not been born “in” the geographic

area of the United States. Rabang v. INS, 35 F.3d 1449, 1454, n.9 (9th Cir. 1994), cert. denied, sub nom. Sanidad v.

INS, 515 U.S. 1130 (1995).

51

Calvin’s Case, 7 Rep. 1, 4b -6a, 18a, 18b (1608).

52

169 U.S. at 658. For a thorough history of the adoption of the English common law principles of citizenship, and the

applications of those principles in the colonies, in the states, and then on a national basis in the United States, see

Kettner, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870 (U.N.C. Press 1978).

53

Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, Volume I, “Of the Rights of Persons,” 354 (1765).

54

Id. at 357-358: “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 .... 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 anything but the united concurrence of the legislature. An Englishmen 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. ...

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 ....”

50

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the feudal system, eventually understood to encompass the reciprocal protection/allegiance of all

English subjects with respect to the crown.55

In 1844, in a probate case in New York State, Assistant Vice-Chancellor Lewis Sandford authored

a detailed and scholarly opinion, later cited and relied upon by numerous federal courts and legal

treatises, on the legal history of natural born citizenship status in the United States.56 The opinion

in Lynch v. Clarke found that one of the litigants, Julia Lynch, who was born in New York to alien

parents who were merely on a “temporary sojourn” in this country, was a natural born U.S.

citizen who had the legal capacity to inherit. Sandford concluded that all persons born in the

United States, even of alien parents who were only here temporarily, had “natural born”

citizenship status under English common law, carried forward in the laws in all of the original

thirteen states after independence, and then under the laws and constitutional provisions of the

United States:

My conclusion upon the facts proved is, that Julia Lynch was born in this state of alien

parents, during their temporary sojourn. That they came here as an experiment, without

any settled intention of abandoning their native country, or of making the United States

their permanent home....

It is indisputable that by the rule of the 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

... By the common law, all persons born within the ligeance of the crown of England,

were natural born subjects, without reference to the status or condition of their parents....

*

*

*

At the formation of our present national government, the common law prevailed as a

system of jurisprudence, in all the thirteen states which then constituted the nation....

I need not dwell more at large upon this unquestionable proposition....

As the common law prevailed in all the colonies, and was the basis of their laws and

jurisprudence, it follows that all persons born in the colonies while in the ligeance of the

King of England, became subjects of the Crown of England; unless it be made to appear

that the rule of the common law was incompatible with the situation with the colonists, or

unsuited to their circumstances; or that it was altered by legislation.

Instead of abridging the rule, all colonial legislation which has come under my

observation, proceeded on the assumption that it was the settled law of the land.

*

*

*

It may then be safely assumed, that at the Declaration of Independence, by the law of

each and all of the thirteen states, a child born within their territory and ligeance

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 of any of the states during the period

that intervened.... 57

The Supreme Court of the United States, in its landmark opinion on birthright citizenship

authored by Justice Gray in United States v. Wong Kim Ark, citing both the common law and

55

Id. at 354-357.

Lynch v. Clarke, 3 N.Y. Leg. Obs. 236 (1 Sand. ch. 583) (1844).

57

Id. at 238, 242, 243-244. The opinion then concluded that the Constitution, in using the phrase “natural born citizen”

was a “direct recognition of the common law principle ....” Id. at 246.

56

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numerous legal precedents in the United States, explained in 1898 that a child born of alien

parents within the country and subject to its jurisdiction (that is, whose parents are not diplomatic

personnel representing a foreign nation or troops in hostile occupation) is considered a “natural

born” citizen (in the United States) or subject (in England),58 as that term has been used over the

centuries in England and the United States:

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.

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.59

The Court noted several judicial precedents finding that the clear common law from England, as

well as statutory law pertaining to such things as inheritance (which prevailed in the states in this

country unless expressly repealed), was that “persons born within the realm, although children of

alien parents, were called ‘natural-born subjects.’”60 Citing an earlier precedent, the Court noted

Justice Story’s opinion that the principles of common law “treated it as unquestionable that by

that law a child born in England of alien parents was a natural born subject.”61 The Court

referenced with approval an earlier decision of a federal circuit court, written by Supreme Court

Justice Swayne sitting on circuit, explaining that “the rule of the common law” of England, and

now “of this country, as well as in England,” is that “all persons born in the allegiance of the

United States are natural born citizens.”62

The Supreme Court in Wong Kim Ark thus concluded that the Fourteenth Amendment “affirms”

the common law rule of “citizenship by birth within the territory,” even if one is born of alien

parents in this country, and approved of the characterization of the children of such resident aliens

as “natural born” citizens of the United States.63 The Fourteenth Amendment further requires that

the person born “in” the United States also be “subject to the jurisdiction” of the United States

which, as noted, is interpreted to mean that such person is subject to the laws of this country, such

58

As to the use of “subject” or “citizen” with respect to “natural born,” the Supreme Court of the United States

referenced a court decision in North Carolina, explaining that “The term ‘citizen,’ as understood in our law, is precisely

analogous to the term ‘subject’ in the common law, and the change of phrase has entirely resulted from the change of

government. The sovereignty has been transferred from one man to the collective body of the people; and he who

before was a ‘subject of the king’ is now ‘a citizen of the State.” 169 U.S. at 663-664, citing State v. Manuel, (1838) 4

Dev. & Bat. 20, 24-26. See also United States v. Villato, 2 U.S. (Dall.) 370, 371 (1797); Hennessey v. Richardson Drug

Company,189 U.S. 25, 34-35 (1903). But see, however, limitations as to “subject” of the realm, and those born in

United States’ possessions, in United States. Rabang v. INS, 35 F.3d at 1454, n. 9.

59

169 U.S. at 658. Emphasis added

60

169 U.S. at 661, citing an English statute of 1700, and referencing cases including The Charming Betsey, 2 Cranch (6

U.S.) 64 (1804); and Inglis v. Sailor’s Snug Harbor 3 Pet. (28 U.S.) 99 (1830).

61

169 U.S. at 661-662, discussing McCreery v. Somerville, 9 Wheat. 354 (1824), where, the court noted, that such rule

of natural born citizenship by birth within the country “of course extended to the Colonies, and, not having been

repealed in Maryland, was in force there.”

62

169 U.S. at 662-663 (emphasis added), citing United States v. Rhodes, 27 Fed. Case 785 (No. 16151) (C.C. Ky.

1866).

63

169 U.S. at 693.

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that jurisdiction may be exercised over them, and thus would exclude children of foreign

diplomats here officially, and those of foreign troops in hostile occupation.64

Being born within the geographic boundaries of the United States, however, unlike the meaning

under British common law, does not necessarily include being born in the unincorporated

“territories,” possessions, or protectorates of the United States, unless such citizenship “at birth”

is otherwise provided by statute.65 A U.S. Court of Appeals, relying on the “Insular cases,” found

that birth in an unincorporated territory or possession of the United States, such as the

Philippines, did not grant Fourteenth Amendment or common law citizenship as being born “in”

the geographic area of the “United States,” even though under the British common law one may

have been a natural born “subject” of the crown when born within the far-flung dominions ruled

by the British Empire.66

Common Law and Persons Born Abroad to Citizen-Parents

In United States v. Wong Kim Ark, the Supreme Court, in examining an immigration question not

dealing specifically with the meaning of the presidential eligibility requirement, provided a

lengthy examination of the English common law of citizenship at the time of the drafting of the

Constitution, and whether such citizenship was obtained by the place of birth (jus soli) only, or

also by descent (jus sanguinis). As noted above, the Court found that the common law of England

was that of jus soli, that is, derived from the feudal notion of the reciprocal responsibilities of

allegiance and protection of an individual that was established in England by the place of that

person’s birth; and that the latter principle of citizenship by descent (because of the citizenship or

nationality of one’s father—jus sanguinis) was, as a general matter, the law in England by statute,

and thus not necessarily as part of the “common law,” even though there existed a long-standing

statutory recognition (since 1350) of the rights of “natural-born subjects” who were born abroad

to British parents or a British father.67

As pointed out by the Supreme Court in Wong Kim Ark, however, there was not necessarily

unanimity in legal scholarship concerning a narrow reading of the British common law with

regard to the children of subjects/citizens born abroad.68 Some legal scholars in England and in

64

In re Look Tin Sing, 21 F. 905, 906 (Cal. Cir. 1884); United States v. Wong Kim Ark, 169 U.S. at 687, 693. See

discussion in more recent case of Plyer v. Doe, 457 U.S. 202, 211-215 (1981), finding that for due process, as well as

equal protection purposes in the Fourteenth Amendment, that one “within the jurisdiction” of a state is one “subject to

its laws”: “In appellants’ view, persons who have entered the United States illegally are not ‘within the jurisdiction’ of

a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the

Fourteenth Amendment supports that constricting construction of the phrase ‘within its jurisdiction’” (457 U.S. at 211).

Rather, the Court found that “the protections of the Fourteenth Amendment extends to anyone … who is subject to the

laws of a State ….” (457 U.S. 215).

65

See, for example, 8 U.S.C. §1402 (Puerto Rico, born on or after April 11, 1899), §1403 (Canal Zone or Republic of

Panama, born on or after February 26, 1904), §1404 (Alaska, born on or after March 30, 1867), §1405 (Hawaii, born on

or after April 30, 1900).

66

Rabang v. INS, 35 F.3d 1449, 1453 (9th Cir. 1994), cert. denied, sub nom. Sanidad v. INS, 515 U.S. 1130 (1995):

“[T]he Citizenship Clause has an express territorial limitation which prevents its extension to every place over which

the government exercises its sovereignty.” See also, id. at 1454, n.9, where the Court of Appeals opined that “wholesale

importation of British common law on ‘subject’ status to interpret the meaning of the Citizenship Clause [of the

Fourteenth Amendment] is inadvisable because of possible differences between ‘subjects’ and ‘citizens,’” and thus

those born in U.S. unincorporated territories or possessions should not necessarily be considered as being born “in” the

United States.

67

169 U.S. 655- 671. See also Blackstone, at 354-361.

68

It has also been argued, even on the basis of the incorporation of only a very narrow and technical concept of the

early English common law rule of jus soli into the Constitution, that the common law understanding, meaning, and

(continued...)

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the United States have argued that the long-standing statutory and parliamentary recognition of

children born abroad to English subjects as “natural-born” was merely “declaratory” of the

existing common law principles and understandings in England, although this was disputed in

dicta by the Supreme Court in Wong Kim Ark:

It has sometimes been suggested that this general provision of the statute of 25 Edw. III.

[1350] was declaratory of the common law. See Bacon, arguendo, in Calvin’s Case, 2

How. St. Tr. 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch. Div. 243,

247; 2 Kent, Comm. 50, 53; Lynch v. Clarke, 1 Sandf. Ch. 583, 659, 660; Ludlam v.

Ludlam, 26 N. Y. 536. But all suggestions to that effect seem to have been derived,

immediately or ultimately, from one or the other of these two sources: The one, the Year

Book of 1 Rich. III. (1483) fol. 4, pl. 7, reporting a saying of Hussey, C. J., “that he who

is born beyond sea, and his father and mother are English, their issue inherit by the

common law, but the statute makes clear,” etc., - which, at best, was but obiter dictum,

for the chief justice appears to have finally rested his opinion on the statute. The other, a

note added to the edition of 1688 of Dyer’s Reports, 224a, stating that at Trinity term 7

Edw. III. Rot. 2 B. R., it was adjudged that children of subjects born beyond the sea in the

service of the king were inheritable, - which has been shown, by a search of the roll in the

king’s bench so referred to, to be a mistake, inasmuch as the child there in question did

not appear to have been born beyond sea, but only to be living abroad. 69

The position of the dissenting Justices in Wong Kim Ark was characterized and discussed by the

Court in the later case of Weedin v. Chin Bow: “The attitude of Chief Justice Fuller and Mr.

Justice Harlan was, that at common law the children of our citizens born abroad were always

natural-born citizens from the standpoint of this Government....”70 A detailed law review article in

1921 by the assistant solicitor of the Department of State noted that a number of legal scholars

and historians contend that the English common law specifically included jus sanguinis, as well

as jus soli, and noted that the “question has been a subject of controversy for six centuries or

more….”71

Other legal scholars have contended that long-standing and commonly accepted principles

incorporated into English law by statute over several centuries, even if they did not merely

“declare” already-existing English common law, actually modified the corpus of the common law

to incorporate such principles, and that this body of law was the one known to the framers, such

that the provisions of the Constitution must be interpreted in that light. Charles Gordon, who was

then general counsel for the United States Immigration and Naturalization Service, explained in

1968 that in addition to recognizing birthright citizenship as to the place of birth (jus soli), “the

consistent practice over several centuries, in England and the United States, [was] to recognize

citizenship status by descent.”72 Gordon thus concluded that “[t]he common law, as it had

(...continued)

usage of the term “natural born” subject/citizen would include, at the very least, the children of U.S. citizens born

abroad when one parent is abroad because of service in an official capacity on behalf of, and under the direction and

control of, the United States Government. This argument would include both diplomatic personnel as well as military

forces who were not in hostile occupation, but were invited into, and stationed, in the foreign country. See Lohman, 36

GONZAGA LAW REVIEW, at 351-352, 365-369; Wong Kim Ark, 169 U.S. at 686, citing Chief Justice Marshall, in The

Schooner Exchange v. McFaddon, 11 U.S. [7 Cranch] 116 (1812).

69

169 U.S. at 669- 670.

70

274 U.S. 657, 670 (1926).

71

Flourny, Richard W. (Assistant Solicitor, Department of State), Dual Nationality and Election, 30 YALE LAW

JOURNAL 545, 548 (1921).

72

Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 MD. L. REV. 1, at 12, 18 (1968).

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developed through the years, recognized a combination of the jus soli and the jus sanguinis,” 73

and that the English common law adopted by the United States had been expanded by the longstanding statutory inclusions over the centuries in England:

[T]here were doubts concerning the applicability of the jus sanguinis under the early

common law. But those doubts were eliminated by statutes enacted in England before the

American Revolution, which became part of the body of law followed in England and

passed on to this country. It can be argued ... that this total corpus was the common law

which this country inherited, and that it persevered unless specifically modified. 74

This position was further implicated in an 1896 Digest of the Law of England with reference to

the Conflict of Laws, by Albert Venn Dicey, as cited by the Supreme Court in Wong Kim Ark.75

Mr. Dicey states in that treatise that “’Natural-born British subject’ means a British subject who

has become a British subject at the moment of his birth,” which expressly includes those born

abroad whose British nationality passes to the child by descent.76

That the United States was not confined to only the narrowest interpretation of the common law

of England in our usages and applications of concepts and terms in this country, was noted by the

Supreme Court in an opinion authored by Justice Story in 1829:

The common law of England is not to be taken, in all respects, to be that of America. Our

ancestors brought with them its general principles, and claimed it as their birthright; but

they brought with them and adopted, only that portion which was applicable to their

situation.77

It was, in fact, common in the states after independence, upon the adoption of their constitutions

and statutes, to incorporate both the common law of England, as well as the statutory laws

adopted by Parliament and applicable in the colonies up until a particular date.78 There is thus

some argument and indication that it was common for a “modified” English common law—

modified by long-standing provisions of English statutory law applicable in the colonies—to be

among the traditions and bodies of law incorporated into the laws, applications, usages, and

interpretations in the beginning of our nation.

Common Understanding in 18th Century of the Term

“Natural Born” Citizen

In addition to examining the common law meaning of the term “natural born” as it related to

citizenship, there are other interpretive analyses that might be employed in an attempt to

understand the “meaning to the framers” of the term “natural born” citizen when the term was

adopted in the Constitution in 1787.79 If, as noted by the Supreme Court in an opinion authored

73

Id. at 18.

Id. at 12.

75

169 U.S. at 657-658.

76

Albert Venn Dicey, A DIGEST OF THE LAW OF ENGLAND WITH REFERENCE TO THE CONFLICT OF LAWS, at 164, 168-169

(Dicey’s Rule 23) (1896).

77

Van Ness v. Pacard, 27 U.S. [2 Peters] 137, 143-144 (1829).

78

Constitution of Delaware, 1776, Article 25; Constitution of New Jersey, 1776, Article XXII; Constitution of

Maryland, November 11, 1776, Declaration of Rights, paragraph III; Constitution of New York, April 20, 1777, Article

XXXVl; Laws of Virginia, July 3, 1776, Ch. 38; Constitution of Massachusetts, 1780, Pt. 2, C. 6, Art. 6.

79

One commentator has averred that whether or not the common law was modified by statute is irrelevant; the only

relevant matter is what the “common understanding” of the meaning of “natural born” was at the time of the

(continued...)

74

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by Justice Story, the “common law of England is not to be taken, in all respects, to be that of

America,” 80 there may be accorded some significance to an analysis of what the term “natural

born” citizen was commonly understood to mean in the American colonies at the time of the

revolution and framing of the Constitution.

It is, of course, always a somewhat speculative exercise to attempt to discern the “common

understanding” of a group of individuals who may be geographically, professionally, and

politically diverse, particularly during a period many years removed from the current time.81 The

fact that no discussion appears in the notes of the Federal Convention of 1787 on the presidential

eligibility clause, and the fact that the actual debates and discussions in the Convention were held

in secret with no official journal of the debates being kept (other than for recording votes)

highlight the problems in such speculation. That being said, however, one might argue that there

existed what might be called a “common” or “general understanding,” or at least common

“usage” of the term “natural born,” as it related to those who were considered “natural born”

subjects of England in the American colonies at the time of independence, and “natural born”

citizens at the time of the adoption of the Constitution. The “state of the law” in colonial America

concerning who was a “natural born” subject of England under English laws, both common law

as well as statutory laws, was certainly known to the framers since, as noted by the Supreme

Court, “These statutes applied to the colonies before the War of Independence.”82

From examination of historical documents, it appears that the term “natural born” as it related to

citizenship under English law and jurisprudence was a term widely known and used in the

American colonies in the 1700’s, and was employed in the context and understanding of British

common law as well as British statutory law. For example, more than a decade before John Jay

had employed the term in his “hint” to General Washington at the Convention of 1787, the First

Continental Congress of the American colonies, meeting in Philadelphia beginning in September

of 1774, adopted a resolution asserting that the common law of England was fully applicable to

the colonies in America, as were such statutory laws of England as would be relevant to their

circumstances, and expressly included in the resolution an assertion of the rights of their

ancestors to be considered “natural-born subjects within the realms of England.” As noted in

Elliot’s compilation and analysis of documents related to independence,

(...continued)

Convention of 1787, regardless of whether that meaning was based solely on British common law or partly on adopted

statutes from England. Seligman, A Brief for Governor Romney’s Eligibility for President, 113 CONG. REC. 35019,

35020 (1967).

80

Van Ness v. Pacard, 27 U.S. at 143-144.

81

Jack N. Rakove, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION, p. 6: “Both the

framing of the Constitution in 1787 and its ratification by the states involved processes of collective decision-making

whose outcomes necessarily reflected a bewildering array of intentions and expectations, hopes and fears, genuine

compromises and agreements to disagree. The discussions of both stages of this process consisted largely of highly

problematic predictions of the consequences of particular decisions. In this context, it is not immediately apparent how

the historian goes about divining the true intentions and understandings of the roughly two thousand actors who served

in the various conventions that framed and ratified the Constitution, much less the larger electorate that they claimed to

represent. … For all these reasons, then, the ideal of “unbiased” history remains an elusive goal, while the notion that

the Constitution had some fixed and well-known meaning at the moment of its adoption dissolves into a mirage.” See

also Leonard W. Levy, ORIGINAL INTENT AND THE FRAMERS’ CONSTITUTION, ix (1988): “For several decades after the

ratification of the Constitution the fading memories of those who had attended the Philadelphia Constitutional

Convention supplied the main evidence of the Framers’ intent. Even when those memories were fresh, the framers

disagreed vehemently about what the Convention had meant or intended ....” See also, id. at pp. 1-29.

82

Weedin v. Chin Bow, 274 U.S. at 660.

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On the same day [14th of October, 1774], Congress unanimously resolved, “that the

respective colonies are entitled to the common law of England, and more especially to the

great and inestimable privilege of being tried by their peers of the vicinage according to

the course of that law.” They further resolved, “that they were entitled to the benefit of

such of the English statutes as existed at the time of their colonization, and which they

have, by experience, respectively found to be applicable to their several and local

circumstances.” They also resolved, that their ancestors, at the time of their immigration,

were “entitled to all the rights, liberties, and immunities, of free and natural-born subjects

within the realms of England.”83

It is thus clear that the delegates to the First Continental Congress in 1774, among whom were

several framers of the Constitution at the Federal Convention of 1787, as well as other notable

“founding fathers” (including John Jay),84 were already familiar with and employed the term

“natural born” in the context of and within the understanding of British common law and

statutory law concepts of the rights and privileges of citizenship.

Of relevance to any meaning and “common understanding” of the term “natural born” within the

American colonies and at the time of the drafting of the Constitution is the legal treatise on the

laws of England referred to as “Blackstone,” for its author William Blackstone. Published in

1765, this treatise was not only available, but was widely known to the framers at the time of the

drafting of the Constitution.85 As noted by the Supreme Court of the United States, “Blackstone’s

Commentaries was widely circulated in the Colonies ...,” 86 and that “undoubtedly the framers of

the Constitution were familiar with it.”87 As discussed in the earlier section of this report on the

common law, Blackstone explained that “natural born” subjects in England and the American

colonies included all those born “in” the lands under British sovereignty. Concerning specifically

the issue of children born abroad of English subjects, Blackstone explains clearly that such

children are then (in 1765) considered under the law of England as “natural born” subjects, and

have been considered as such for most purposes since at least the time of Edward III (1350),

because of the development of statutory law in England to “encourage also foreign commerce.”

As stated by Blackstone in his 1765 treatise,

[A]ll 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

83

Jonathan Elliot, THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL

CONSTITUTION [ELLIOT’S DEBATES], Vol. I, “Gradual Approaches Towards Independence,” at 44 (2d Ed. 1836).

Emphasis in original.

84

Delegates to that First Continental Congress in 1774 included such framers present at the Convention of 1787 as

Roger Sherman of Connecticut, William Livingstone of New Jersey, Thomas Mifflin of Pennsylvania, George Read of

Delaware, George Washington of Virginia, and John Rutledge of South Carolina, as well as other notable “founding

fathers,” including John Adams and Samuel Adams of Massachusetts, John Jay of New York, and Patrick Henry and

Richard Henry Lee of Virginia.

85

One noted historian of the American colonial era has commented on the “deep legalism” of society in colonial

America “where William Blackstone’s Commentaries on the Laws of England was selling as well as it was in

England.” Jack Rackove, REVOLUTIONARIES, at 68 (2010). See also Schick v. United States, 195 U.S. 65, 69 (1904),

discussing Blackstone’s Commentaries: “... it has been said that more copies of the work had been sold in this country

than in England ....”

86

Powell v. McCormack, 395 U.S. 486, 538 (1969). “Sir William Blackstone’s Commentaries on the Laws of England

(1765-1769) is the most important legal treatise ever written in the English language. It was the dominant lawbook in

England and America in the century after its publication and played a unique role in the development of the fledgling

American legal system.” William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, [hereinafter Blackstone],

Volume I, Of the Rights of Persons (1765) (Introduction at iii).

87

Schick v. United States, 195 U.S. at 69.

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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. 88

The “commonly understood” meaning of the term “natural born” in the United States at the time

of the drafting of the Constitution might thus be broader than the early, strict English “common

law” meaning of that term.89 As noted by Charles Gordon, former Chief Counsel of the

Immigration and Naturalization Service, whether the body of English law in the 1770s was from

early common law, from statutory law, or from the common law modified over the years by

statutory law, these provisions “were part of the corpus of the English law in existence at the time

of the Revolution, which was substantially recognized and adopted by our forefathers.”90 This

common usage and popular understanding to the framers of the term “natural born” subject (as

employed in England), and the term’s apparent evolution and broadening of meaning through

statutory law, has thus led several other legal commentators and historians to conclude: “The

constitutional Framers had a broad view of the term ‘natural-born’ and considered all foreignborn children of American citizen parents eligible for the Office of the Presidency”;91 or, as stated

by another: “[T]he delegates meant to apply the evolved, broader common law meaning of the

term when they included it in the presidential qualifications clause.”92

Presidential historian Michael Nelson has also averred that the term appeared to have a common

meaning at the time of the drafting of the Constitution which involved within its concept both the

common law definition and mode of acquisition of citizenship (through jus soli), as well as the

common understanding of the long-standing broadening of such term by the operation of English

statutory law to include those subjects who may have traveled abroad for purposes of commerce,

or otherwise. As noted by Nelson (and pointed out by others), a more restrictive meaning to

include only those born within the boundaries of the United States would mean that John Jay,

who may have recommended the precise term to the Convention, would have intended to exclude

from eligibility his own children who were born in Spain and France while Jay was representing

the United States abroad:

The provision for “natural born Citizen” probably was aimed at immigrants, although the

term is so unusual as to be vague.... [b]ut [it] had deep roots in British common law. In

medieval times it had embodied the doctrine of jus soli: a natural born citizen was one

88

Id. at 361: “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. ... [T]he children of the king’s ambassadors 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 .... To encourage also foreign commerce, it was enacted by statute 25 Edw. III.

ft. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king ...

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 further 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.”

89

As noted in the preceding section of this report, legal scholars in England were not completely unanimous about

English common law during this period, as some had averred that it included as “natural born” subjects not only jus

soli, but also those born abroad of English parents, and/or that the statute of 1350 in the reign of Edward III was merely

a recitation or “declaration” of the common law, which might also have lead to a common or popular perception (or

even a commonly held misunderstanding) of the meaning of the term in the U.S. as including the issue of citizens born

in foreign lands even in the narrower concept of the “common law.” See also Flourny, Richard W. (Assistant Solicitor,

Department of State), Dual Nationality and Election, 30 YALE LAW JOURNAL 545, 548 (1921).

90

Gordon, 28 MD. L. REV., at 18.

91

Lohman, 36 GONZAGA LAW REVIEW, at 369.

92

Nelson, at 396. See also 7 Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, IMMIGRATION LAW AND

PROCEDURE, §92.03[1][b] (rev. ed. 2000); Pryor, 97 YALE L.J. at 882 (1988); Gordon, 28 MD. L. REV at 5-7.

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born within the realm (on the soil, so to speak). But with increased commerce and travel,

Parliament, starting in 1350, seemed to expand the definition of natural born to

incorporate the doctrine of jus sanguinis. Now babies born of British citizens abroad or at

sea were included as well. One can presume only that Jay and the delegates meant to

apply the evolved, broader common law meaning of the term when they included it in the

presidential qualifications clause. Certainly Jay did not mean to bar his own children born

in Spain and France while he was on diplomatic assignments, from legal eligibility to the

presidency.93

With respect to the common or general meaning of the term “natural born” to the framers of the

Constitution in the context of those born abroad to U.S. citizens, it may be significant to note that

the first Congress, under its express constitutional authority “to establish an uniform Rule of

Naturalization,”94 enacted the Naturalization Act of 1790.95 The first of several such acts, this

1790 statute stated that

[T]he children of citizens of the United States, that may be born beyond the sea, or out of

the limits of the United States, shall be considered as natural born citizens: Provided,

That the right of citizenship shall not descend to persons whose fathers have never been

resident in the United States....96

This early congressional act provides some argument that the term “natural born” citizen was

seen to include more than merely the “native born,” that is, those born in the country (in

accordance with the common law principle of jus soli), but also to include the long-standing

English statutory recognition of citizenship by descent through one’s father when an individual is

born abroad, that is, all of those who are citizens “at birth” or “by birth.” The significance of such

a statute passed by the first Congress was, of course, the fact that many of the framers of the

Constitution were Members of that first Congress, as well as the fact that the first Congress’s

understanding of the meaning of the terms of the Constitution was most contemporaneous in time

with the document’s adoption. One author has noted that of the “Committee of Eleven,” which

first proposed to the Convention of 1787 the eligibility requirement of being a “natural born”

citizen, 8 of the 11 committee members were in that first Congress, and none stated objections to

or disagreement with the characterization of the term “natural born” by statute by the Congress.97

The Supreme Court has expressly noted the weight of authority of early actions of the first

Congress in explicating portions of the Constitution because of the make-up of that Congress, and

its proximity in time to the Convention. As noted by the Court, an act “passed by the first

Congress assembled under the Constitution, many of whose members had taken part in framing

that instrument, ... is contemporaneous and weighty evidence of its true meaning.”98

93

Michael Nelson, Constitutional Qualifications for President, PRESIDENTIAL STUDIES QUARTERLY, Vol. XVII, No. 2,

at 396 (Winter 1987), citing Gordon, Who Can Be President?

94

U.S. CONST. art. I, §8, cl. 4.

95

Act of March 26, 1790, ch. 3, 1 Stat. 103, 104.

96

The 1790 statute was repealed and superseded by a 1795 naturalization statute which omitted the phrase “natural

born.” Act of January 29, 1795, ch. 20, 1 Stat. 414, 415. There is no legislative history indicating the reason for the

deletion of that term; however, in that statute the phrase “shall be considered as citizens” referred to the status of minor

children derivatively naturalized upon the naturalization of their parents, who are not “natural born,” as well as to the

children born abroad to U.S. citizens, so it is possible that the deletion is merely a stylistic/grammatical decision.

97

Lohman, 36 GONZAGA LAW REVIEW at 371.

98

Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888); Marsh v. Chambers, 463 U.S. 783, 788-791 (1983). See

also Michel v. Anderson, 14 F.3d 623, 631 (D.C. Cir. 1994): “Although the actions of the early congresses are not a

perfect indicator of the Framers’ intent, those actions provide some indications of the views held by the Framers, given

the propinquity of the congresses and the framing and the presence of a number of Framers in those congresses.”

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One of the more noted political and constitutional scholars on the American presidency, Edward

S. Corwin, has explained that “natural born” citizens eligible to be President clearly include all of

those born “on the soil” of the United States and subject to its jurisdiction, under the common law

principles of jus soli applicable in the United States, but also would appear to include those born

abroad of U.S. citizens under the principle of jus sanguinis, as adopted by Congress by statute.

Corwin noted that Congress has the authority as the legislative body of a sovereign nation “to

determine who shall and shall not be admitted to the body politic”:

But who are “natural-born citizens”? By the so-called jus soli, which comes from the

common law, the term is confined to persons born on the soil of a country; and this rule is

recognized by the opening clause of the Fourteenth Amendment, which declares to be

citizens of the United States “all persons born or naturalized within the United States and

subject to the jurisdiction thereof.” On the other hand, by the so-called jus sanguinis,

which underlay early Germanic law and today prevails on the continent of Europe,

nationality is based on parentage, a principle recognized by the first Congress under the

Constitution in the following words:

The children of citizens of the United States that may be born beyond the sea, or

outside of the limits of the United States, shall be considered as natural-born citizens

of the United States; provided that the right of citizenship shall not descend to

persons whose fathers have never been resident in the United States.

By succeeding legislation the general clause of this provision has been continued in force

to this day. The question arises, whence did Congress obtain the power to enact such a

measure? By the Constitution the Congress is authorized to pass “an uniform rule of

naturalization,” that is, a uniform rule whereby aliens may be admitted to citizenship;

while the provision under discussion purports to recognize a certain category of persons

as citizens from and because of birth. The provision must undoubtedly be referred to the

proposition that, as the legislative body of a nation sovereign at international law,

Congress is entitled to determine who shall and who shall not be admitted to the body

politic.

Should, then, the American people ever choose for President a person born abroad of

American parents, it is highly improbable that any other constitutional agency would

venture to challenge their decision ....99

It may be noted that some have argued that the relevant common meaning of natural born citizen

that was prevalent in 18th century America should not be the one that was actually applicable in

the American colonies during that time from British statutory and common law, and which was

adopted specifically by the states after independence in 1776 (and which, as noted by Justice

Story, formed the “foundation” for American jurisprudence), but rather should be recognized as

one derived from what has been described as a “philosophical treatise”100 on the law of nations by

a Swiss legal philosopher in the mid-1700s.101 This particular treatise, however, in the editions

available at the time of the drafting of the U.S. Constitution, did not actually use, either in the

original French or in English interpretations at that time, the specific term “natural born

99

Edward S. Corwin, THE PRESIDENT, OFFICE AND POWERS, 1787-1984, at 38-39 (5th Revised ed. by Bland, Hindson,

and Peltason, 1984). (Footnotes omitted).

100

Craig v. United States, 340 Fed. Appx. 471, 473 (10th Cir. Okla. 2009), cert. denied, 130 S.Ct. 141 (2009).

101

Emmerich de Vattel, THE LAW OF NATIONS, OR PRINCIPLES OF THE LAW OF NATURE, APPLIED TO THE CONDUCT AND

AFFAIRS OF NATIONS AND SOVEREIGNS (London 1760)[hereinafter THE LAW OF NATIONS]. The 1760 Volume is an

English translation of the original French, E. De Vattel, DROIT DES GENS: OU, PRINCIPLES DE LA LOI NATURELLE,

APPLIQUES A LA CONDUCT & AUX AFFAIRES DES NATIONS & DES SOUVERAINS (1758)[hereinafter DROIT DES GENS].

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citizens.”102 It was not until after the adoption of the Constitution in the United States did a

translator interpret the French in Emmerich de Vattel’s Law of Nations to include, in English, the

term “natural born citizens” for the first time, and thus that particular interpretation and creative

translation of the French, to which the Vattel enthusiasts cite, could not possibly have influenced

the framing of the Constitution in 1787.103

Furthermore, and on a more basic level, the influence of the work of Vattel on the framers in

employing the term “natural born” in relation to domestic citizenship within the Constitution is

highly speculative at best, is without any direct historical evidence, and is contrary to the

mainstream principles of constitutional interpretation and analysis within American

jurisprudence. Although it appears that there is one single reference by one delegate at the Federal

Convention of 1787 to Vattel (in reference to several works of different authors to support an

argument for equal voting representation of the states in the proposed Congress),104 there is no

other reference to the work in the entire notes of any of the framers published on the proceedings

of the Federal Convention of 1787,105 and specifically there is no reference or discussion of the

work at all in relation to citizenship at the Convention, in the Federalist Papers,106 or in any of the

state ratifying conventions.107

It would appear to be somewhat fanciful to contend that in employing terms in the U.S.

Constitution the framers would disregard the specific and express meaning of those precise terms

in British common law, the law in the American colonies, and subsequently in all of the states in

the United States after independence, in favor of secretly using, without comment or explanation,

a contrary, non-existent English translation of a phrase in a French-language treatise on

international law. In a state case cited with approval by the U.S. Supreme Court, an extensive

legal analysis of the question of natural born citizenship under the law of the United States by

Assistant Vice Chancellor Sandford, in New York in 1844, found that the laws in all of the

102

In the original French, the sentence reads: “Les naturels ou indigenes font ceux qui font nés dans le pays, de Parens

Citoyens.” (DROIT DES GENS, supra at Ch. XIX, p. 111). In the English translation available at the time of the framing

of the Constitution, translated in English in 1760 and in 1787, the terms “naturels or indigenes” were simply interpreted

as “natives or indigenes”: “The natives, or indigenes, are those born in the country of parents who are citizens.” THE

LAW OF NATIONS, supra at Vol. I, Book 1, Ch. XIX, §212, at p. 92 (1760), and at p. 166 of the 1787 edition. The

English phrase “natural born citizen” in early French translations of the U.S. Constitution’s Article II, §1, cl. 5,

however, was interpreted as either “citoyen-né” ([a “born citizen”] John Stevens or Warren Livingston, EXAMEN DU

GOUVERNEMENT D’ANGLETERRE, COMPARE AUX CONSTITUTIONS DES ÉTAT-UNIS,” at 257 (Paris 1789)), or “citoyen né

dans les États-Unis,” ([a “citizen born in the United States”], L.-P. Conseil, MÉLANGES POLITIQUES ET PHILOSPHIQUES,

“Constitution Des États-Unis,” at 160 (Paris 1833), and M. Du Ponceau, EXPOSÉ SOMMAIRE DE LA CONSTITUTION DES

ÉTATS-UNIS D’AMÉRIQUE, at 45 (Paris 1837)), or in more recent French translations, “citoyen de naissance” (“citizen at

birth”). None of these French expressions for the English term “natural born citizen” were used by Vattel.

103

Compare the 1760 London edition of Vattel’s Law of Nations, to the 1797 English translation (London 1797), at

Book 1, Ch. XIX, p. 101 (Lib. of Congress No. JX2414 .E5 1797).

104

I Farrand at 437-438 (Mr. Martin, of Maryland).

105

Farrand’s work, The Records of the Federal Convention of 1787, includes the personal notes of the following

framers: Robert Yates of New York, James Madison of Virginia, Rufus King of Massachusetts, James McHenry of

Maryland, William Pierce of Georgia, William Paterson of New Jersey, Alexander Hamilton of New York, and George

Mason of Virginia, as well as the Journal kept by the Secretary of the Convention, Major William Jackson. I Farrand,

supra at xi-xxii.

106

THE FEDERALIST: A COLLECTION OF ESSAYS, WRITTEN IN FAVOUR OF THE NEW CONSTITUTION, AS AGREED UPON BY

THE FEDERAL CONVENTION, SEPTEMBER 17, 1787 (New York 1788).

107

There were only two apparent references in all of the state ratifying debates to Vattel: one by a delegate in South

Carolina in relation to a nation’s duty to honor treaties (4 ELLIOT’S DEBATES at 278), and one in Pennsylvania

mentioned with other “political writers” to support the notion that not all of the rights of the people of a nation could be

“completely enumerated” in a constitution. 2 ELLIOT’S DEBATES at 453-454.

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American colonies, and then in all of the states after independence, followed the English common

law principles of jus soli, that is, that birth in the territory governed citizenship at birth, regardless

of the nationality or citizenship of one’s parents.108 Sandford found that it would be

“inconceivable” that the framers, in drafting the Constitution, would abandon without explicit

comment or explanation in the document, the existing law in all of the colonies, and then in all of

the states, of who were natural born citizens in favor of an “international” or “natural” law theory

of citizenship by “descent” (through one’s father), an argument pressed by one of the litigants

relying, in part, on Vattel. Addressing specifically the question of the use of the term “natural

born citizen” in the federal Constitution as one of the qualifications for President, Vice Chancellor

Sandford found the following:

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. Those states were the constituent parts of the United States, and when the

union was formed, and further state regulation on the point terminated, it follows, in the

absence of a declaration to the contrary, that the principle that 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.... 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 that 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,” &c. The only

standard which then existed, of 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 rule of common law, in force when the constitution was adopted, he

is a citizen.

Moreover, the absence of any avowal or expression in the constitution of a design to

affect the existing law of the country on this subject, is conclusive against the existence

of such design. It is inconceivable that the representatives of the thirteen sovereign states,

assembled in convention for the purpose of framing a confederation and union for

national purposes, should have intended to subvert the long-established rule of law

governing their constituents on a question of such great moment to them all, without

solemnly providing for the change in the constitution; still more that they should have

come to that conclusion without even once declaring their object.109

The treatise in question by Emmerich de Vattel was a work concerning the “law of nations,”

which we would now classify generally as “international law.” However, the concept of

citizenship within a particular country is one governed not by international law or law of nations,

but rather is governed by municipal law, that is, the internal law of each country.110 Vattel’s

writings on citizenship by “descent” reflected in many circumstances what the law or practice

may have been in certain European nations at the time—that is, that citizenship followed the

108

Lynch v. Clarke, 3 N.Y. Leg. Obs. 236, 242, 244 (1 Sand. ch. 583) (1844). This case was cited with approval by the

Supreme Court in United States v. Wong Kim Ark, at 664, 674, and also by the U.S. Court of Appeals in In re Look Tin

Sing, 21 F. 905, 909 (Cal. Cir. 1884).

109

Lynch v. Clark at 246-247. Emphasis in original.

110

Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 162 (1830); United States v. Wong Kim Ark, 169 U.S. 649, 668 (1898);

Perkins v. Elg, 307 U.S. 325, 329, (1939); Lynch v. Clark at 249; see also Frederick Van Dyne (Assistant Solicitor,

Department of State), CITIZENSHIP OF THE UNITED STATES, at 3-4 (New York 1904).

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nationality or citizenship of one’s father, as opposed to the place of birth.111 This concept,

although prevalent on the European Continent was, even as expressly noted in Vattel’s work

itself, clearly not the law in England or thus the American colonies,112 and clearly was not the

concept and common understanding upon which U.S. law was based. James Madison, often

referred to as the “Father of the Constitution,” expressly explained in the House of

Representatives in the First Congress, in 1789, that with regard to citizenship the “place” of birth,

and not “parentage” was the controlling concept adopted in the United States.113 Additionally, the

Supreme Court in 1971 simply and succinctly explained, after citing historical legal precedent:

“We thus have an acknowledgment that our law in this area follows English concepts with an

acceptance of the jus soli, that is, the place of birth governs citizenship status except as modified

by statute.”114 Again in 1998, the Supreme Court expressly recognized jus soli, the place of birth,

as controlling in the United States, noting that in this country “citizenship does not pass by

descent” except as provided by Congress in statute.115

The “common” understanding of the term “natural born” citizen during the revolutionary period,

the time of the drafting of the Constitution, and in the generation after, was that of one who was a

citizen “at birth” (and the principal factor in the United States, as in England, was the place of

birth within the country, rather than that of ancestry, lineage, or descent, except as provided in

statute). This common understanding and usage has continued up until this day as the term

“natural born” citizen has entered the popular, legal lexicon as defined as: “A citizen by birth, as

distinguished from a citizen who has been naturalized,”116 and the meaning of “natural born” in

common, general usage as “having a specified status or character by birth.”117

111

See discussion of European nations following concepts of citizenship by “descent” through one’s father, in

Flournoy, Dual Nationality and Election, 30 YALE LAW JOURNAL, at 554-559. Vattel explained that the citizenship of

“children naturally follow the condition of their fathers,” and that “in order to be of the country, it is necessary that a

person be born of a father who is a citizen ....” Vattel, LAW OF NATIONS, at Ch. XIX, p. 101 (1797 ed.). It is interesting

to recognize that Vattel never expressly postulated a “two-citizen” parent requirement for what he described as natives

or indigenes. Rather, grammatically, the plural of parent or relative (parens) merely conforms to the plural subject of

“natives” or “indegenes.” That is, for example, if the rule is that the “children born in the United States of foreign

diplomats” are not to be considered natural born “citizens” of the United States under common law principles, such

statement does not necessarily require that both parents must be foreign diplomats to deny such U.S. citizenship status

to that child. See, e.g., In re Thenault, 47 F.Supp. 952 (D.D.C. 1942).

112

Vattel, LAW OF NATIONS, at Ch. XIX, p. 102 (1797 ed.). See discussion by the Connecticut Supreme Court of Errors,

in Town of New Hartford v. Town of Canaan, 5 A. 360 (Conn. 1886): “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, p. 17, thus comments: ‘This is the law in most European States

(Westlake, p. 16; Foelix, p. 54), but not in England or in the United States.’”

113

“It is an established maxim that birth is a criterion of allegiance. Birth, however, derives its force sometimes from

place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United

States ....” James Madison, explaining the citizenship eligibility of Representative-elect William Smith, in the election

contest of Ramsay v. Smith, 1st Cong., 1st Sess. (1789), in Clarke and Hall, CASES OF CONTESTED ELECTIONS IN

CONGRESS, FROM THE YEAR 1789 TO 1834, INCLUSIVE, at p. 33 (Washington 1834).

114

Rogers v. Bellei, 401 U.S. 815, 828 (1971).

115

Miller v. Albright, 523 U.S. 420, 434, n.11 (1998).

116

BALLENTINE’S LAW DICTIONARY, at 831 (“natural-born citizen”) (3rd ed. 1969). See also BLACK’S LAW DICTIONARY,

at 278 (“natural-born citizen”) (9th ed. 2009) “A person born within the jurisdiction of a national government.”

117

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED, at p. 1507 (1976)

(note specific reference to presidential eligibility). It may also be noted that the English word “natural,” according to

the OXFORD ENGLISH DICTIONARY, is rooted in the “Middle English (in the sense ‘having a certain status by birth’) ….”

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Citizenship at Birth: Case Law and Interpretations

The evidence of historical intent, general understandings, and common law principles underlying

American jurisprudence thus indicate that the most reasonable interpretation of “natural born”

citizens would include those who are considered U.S. citizens “at birth” or “by birth,” either by

the operation of the strict “common law” of jus soli derived from English common law

(physically born in the United States and subject to its jurisdiction, without reference to parentage

or lineage), or under existing federal statutory law incorporating long-standing concepts of jus

sanguinis, the law of descent, including those born abroad of U.S. citizen-parents. This general

historical understanding and interpretation is supported, as well, by specific federal case law in

the United States, and in official legal opinions of U.S. officers.

Legal Background and Historical Cases

Although the Supreme Court has not needed to rule specifically on the presidential eligibility

clause, as discussed in more detail below, numerous federal cases, as well as state cases, for more

than a century have used the term “natural born citizen” to describe a person born in this country

and under its jurisdiction, even to parents who were aliens in the U.S.118 Additionally, several

Supreme Court cases, as well as numerous constitutional scholars, have used the term “native

born” citizen to indicate all of those children physically born in the country (and subject to its

jurisdiction), without reference to parentage or lineage, and employed such term in reference to

those citizens eligible to be President under the “natural born” citizenship clause, as opposed to

“naturalized” citizens, who are not.119 In no currently controlling legal opinion in American

jurisprudence has the citizenship or nationality of one’s parents or forebears been considered a

determining factor in the eligibility of a citizen born within the United States to be President, and

no holding in any case in federal court has ever established a “two citizen-parent” requirement, or

other requirement of lineage or bloodline, for such a “native born” U.S. citizen to be eligible for

the Presidency.

Some of the legal arguments based on American jurisprudence forwarded by those who support

an alternate and highly exclusionary reading of the term “natural born” citizen (including reading

into the Constitution a requirement for one to have two U.S. citizen-parents) often begin with a

citation to language in the 1857 Dred Scott decision, Scott v. Sandford.120 The Dred Scott

118

Lynch v. Clarke, 3 N.Y. Leg. Obs. 236 (1 Sand. ch. 583) (1844); United States v. Rhodes, 27 Fed. Case 785 (No.

16151) (C.C. Ky. 1866); In re Look Tin Sing, 21 F. 905, 906 (Cal. Cir. 1884); Town of New Hartford v. Town of

Canaan, 5 A. 360 (Conn. 1886); United States v. Wong Kim Ark, 169 U.S. 649, 662-63, 674-75 (1898); Kwock Jan Fat

v. White, 253 U.S. 454, 457 (1920); Dos Reis ex rel. Camara, 68 F.Supp. 773, 774 (D.Mass. 1946); Yamauchi v.

Rogers, 181 F. Supp. 934, 935-936 (D.D.C. 1960); Nwankpa v. Kissinger, 376 F. Supp. 122, 123 (E.D. Ala. 1974);

Diaz-Salazar v. INS, 700 F.2d 1156, 1160 (7th Cir. 1982), cert. denied, 462 U.S. 1132 (1983); Mustata v. U.S.

Department of Justice, 179 F.3d 1017, 1019 (6th Cir. 1999); Hollander v. McCain, 566 F.Supp.2d 63, 66 (D.N.H.

2008); Ankeny v. Governor of the State of Indiana, 916 NE2d 678, 688 (2009), pet. to transfer jur. den. (Ind. Supreme

Court, April 5, 2010).

119

Luria v. United States, 231 U.S. 9, 22 (1913); United States v. Schwimmer, 279 U.S. 644, 649 (1929); United States

v. MacIntosh, 283 U.S. 605 (1931); Schneider v. Rusk, 377 U.S. 163, 165 (1963); Kent, COMMENTARIES ON AMERICAN

LAW, at 273 (Vol. I, 2d ed. 1832); Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES, §271,

at 167 (Boston 1840); St. George Tucker, William Blackstone, BLACKSTONE’S COMMENTARIES: WITH NOTES AND

REFERENCE TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND OF THE

COMMONWEALTH OF VIRGINIA, Vol. I, App. at 323 (Philadelphia 1803); Gordon, Mailman, & Yale-Loehr,

IMMIGRATION LAW AND PROCEDURE, Vol. 7, §§91.02[4][a] and §91.02[4][c] (rev. ed. 2010).

120

Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857).

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decision, in addition to denying that even freed slaves or their progeny could be “citizens” of the

United States (and thus finding that the specific petitioner in that case did not have the capacity to

bring the original suit under consideration), attempted to provide legal justification under the

Constitution for human slavery in the United States and the resultant treatment of “negroes of the

African race” as property and chattel without rights under the Constitution. In so doing, the Court

fashioned a very exclusive understanding, eventually rejected and overturned by later Supreme

Court decisions, of who were “citizens” of the United States, even if one were born to

emancipated slaves in this country. The opinion of the Court, written by Chief Justice Taney,

noted that the status of those “whose ancestors were negroes of the African race … imported into

this country, and sold and held as slaves” was that of non-citizens.121 That is, that even

“descendants of such slaves, when they shall be emancipated, or who had been born of parents

who had become free before their birth” were “not intended to be included, under the word

‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that

instrument provides….”122 The Court based such findings regarding citizenship and ancestry on

the opinion that such persons did not make up, and were not thought to be part of the community

or the “political body” of the “sovereign people” of the United States who ratified the

Constitution, and were thus not “a constituent member of this sovereignty” since “they were at

that time considered as a subordinate and inferior class of beings, who had been subjugated by the

dominant race, and, whether emancipated or not, yet remained subject to their authority for, and

had no rights or privileges but such as those who held the power and the Government might

choose to grant them.”123

In a concurring opinion in Scott v. Sandford, one Justice cited to Vattel’s discussion of citizenship

and “natural born” citizen (as later interpretations into English had expressed the French usage in

his treatise, Law of Nations), not specifically with regard or intent to define “natural born”

citizenship in reference to presidential eligibility, but rather to support his opinion that Negroes

brought to America as slaves, as well as their progeny, could not be citizens of the United

States.124 It should be noted that this particular opinion was not only a concurring opinion, not

joined by any other Justice in the Dred Scott decision, but that such concurrence by Justice Daniel

has never formed the basis or authority for any majority ruling of a federal court in the history of

American jurisprudence. 125 Similar to the opinion of the Court, Justice Daniels’ opinion has been

superseded and controverted by later Supreme Court rulings and constitutional amendments.

It is general knowledge that the Dred Scott decision has widely and commonly been described as

the “worst” and most vilified Supreme Court decision in the history of the United States.126 The

121

60 U.S. at 403.

60 U.S. at 403-404.

123

60 U.S. at 404-405. The Court also found that the Congress had exceeded its authority in outlawing slavery in new

territories that the United States had acquired, giving a very narrow and restrictive reading of the express constitutional

authority of Congress over federal lands (Article IV, §3, cl. 2) to cover only those lands owned at the time of the

drafting of the Constitution, and not those subsequently acquired from foreign nations. 60 U.S. at 432.

124

60 U.S. at 476-477, Daniel, J., concurring.

125

A somewhat parallel, restrictive argument (and reference to de Vattel) was put forth again later in the 1800’s in the

minority opinion in Wong Kim Ark, 169 U.S. at 708 (Fuller, C.J., Harlan, J., dissenting) but, as noted, has never since

formed the basis of a majority opinion or any controlling precedent in American jurisprudence.

126

United States, National Archives and Records Administration, http://www.ourdocuments.gov: “The decision of

Scott v. Sandford, considered by legal scholars to be the worst ever rendered by the Supreme Court …”; David Savage,

How Did They Get It So Wrong? ABA JOURNAL, January 1, 2009: “… the worst decisions of the U.S. Supreme Court?

Historians and court scholars agree on a pair of 19th century opinions: Dred Scott v. Sandford, the 1857 ruling that

upheld slavery even in the free states ….”; Paul Finkelman, DRED SCOTT V. SANDFORD: A BRIEF HISTORY WITH

DOCUMENTS, at pp. 4-5, citing, among others for the proposition that the case is the worst Supreme Court decision,

(continued...)

122

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decision in that case authored by [Chief] Justice Taney, not only because of the enactment of the

Thirteenth, Fourteenth, and Fifteenth Amendments, but also because of its specious constitutional

and legal reasoning,127 has been reduced to an “historical curiosity.”128 As explained by historian

and professor James Kettner in his work, The Development of American Citizenship, 1608-1870:

In seeking to derive consistent exclusionist principles from an ambivalent legal tradition,

Taney could only succeed by distorting history and making “bad law.” ... In making

national citizenship exclusively the effect of naturalization or pedigree, he disregarded

volumes of judicial precedents emphasizing place of birth without regard to ancestry.

Taney’s opinion rested instead on the social fact of prejudice and discrimination. 129

Within a few years of the Dred Scott decision, in 1862, the Attorney General of the United States,

Edward Bates, issued a formal legal opinion to a federal department on the question of

“citizenship” of those born within the geographic boundaries of the United States which clearly

demonstrated the weakness in the legal reasoning of the Court in Dred Scott.130 This opinion is

significant because it preceded the adoption of the Fourteenth Amendment, and was thus based on

the then-existing state of the law, constitutional precepts, and common law principles derived

from English law, and clearly expressed the legal and constitutional reasoning concerning

“citizenship” in the United States underlying previous federal court precedent (other than and

ignored by the majority in Dred Scott) as well as the foundational principles in subsequent

Supreme Court determinations over the next 150 years. The formal opinion of the Attorney

General concluded that those who were “natural born” citizens were those who were U.S. citizens

“by birth”:

We have natural-born citizens, (Constitution, article 2, sec. [1],) 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 became 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 of another nation. For

we have no law, (as the French have,) to decitizenize a citizen who has become such

either by the natural process of birth, or by the legal process of adoption.... 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 ....

(...continued)

Justice Antonin Scalia, Professor Alexander Bickel of Yale Law School, Chief Justice Charles Evans Hughes; Justice

Felix Frankfurter; and Justice John Marshall Harlan; Junius P. Rodriguez (editor), SLAVERY IN THE UNITED STATES: A

SOCIAL, POLITICAL, AND HISTORICAL ENCYCLOPEDIA, p. 265 (2007): “Universally condemned as the U.S. Supreme

Court’s worst decision …”; Corinne J. Naden and Rose Blue, DRED SCOTT: PERSON OR PROPERTY, at p. 111 (2005):

“Part of the legacy of Scott v. Sandford is that it is generally regarded as the worst decision ever handed down by the

Supreme Court and the worst failure of the U.S. judicial system”; Lawrence Baum (Ohio State University),

Perspectives on Politics, Cambridge Journal On Line, Cambridge University Press, Vol. 5, No. 2, at p. 338 (June 2007):

“Scott v. Sandford (1857), the Dred Scott decision, is the consensus choice as the worst decision in the Supreme

Court’s history.”

127

Robert Bork, THE TEMPTING OF AMERICA, p. 28 (1990): “Speaking only of the constitutional legitimacy of the

decision, and not of its morality, this case remained unchallenged as the worst in our history .…”

128

CONSTITUTION ANNOTATED, S. Doc. 108-17, at 362.

129

Kettner, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 328 (U.N.C. Press 1978). Emphasis added.

130

The Attorney General of the United States has the express statutory authority to issue official legal opinions to the

departments and agencies of the federal government. Judiciary Act of 1789, §35, 1 Stat. 73 (September 24, 1789), see

now 28 U.S.C. §512.

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As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we

enjoy than the “accident at birth”—the fact that we happened to be born in the United

States. And our Constitution, in speaking of natural-born citizens, uses no affirmative

language to make them such, but only recognizes and reaffirms the universal principle ...

that the people born in a country do constitute the nation, and, as individuals, are natural

members of the body politic....[I]t 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 ... That nativity furnishes the rule,

both of duty and of right as between the individual and the government, is a historical and

political truth ... 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, section 25; Bl. Com., book 1, chapter 10, p. 365; 7 Co. Rep.,

Calvin’s case; 4 Term Rep., p. 300, Doe vs. Jones; 3 Pet.Rep., p. 246; Shanks vs. Dupont;

and see a very learned treatise, attributed to Mr. Binney, in Am. Law reporter, 193. 131

The Attorney General thus opined that those who are “born” citizens of the United States, as

opposed to those who are “aliens” and must go through the legal process of naturalization, are

“natural born” citizens of this country, without any reference to the “citizenship” or nationality of

their parents. The Attorney General’s opinion emphasized that these “natural born” citizens, those

who are citizens of the United States at birth or “by birth,” including “every person” who is

“home born,” are not within a very narrow or special category, but rather are “the mass of our

citizens.” In an earlier formal opinion from Attorney General Bates to Secretary of State Seward,

the Attorney General similarly concluded: “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.”132

The Supreme Court itself soon began to question, re-evaluate, and move away from the legal

reasoning underlying the Dred Scott decision. In one early Supreme Court case after Dred Scott,

the Court narrowly applied the earlier theory of citizenship in Dred Scott (as being only the

original community of people who ratified the Constitution and their progeny),133 and relied

instead on the common law to discuss the concept of citizenship in the United States after the

original generation of citizens. The Court noted that those children born on the soil of the United

States to citizen-parents would clearly be among those who are “natural born” citizens under the

common law, but did not rule or hold that such category of citizenship was exclusive to such

children.134 The Supreme Court in Minor v. Happersett, in ruling in 1875 that women did not have

the constitutional right to vote in federal or state elections (as a privilege or immunity of

citizenship), raised and discussed the question in dicta as to whether one would be a “natural

born” citizen if born to only one citizen-parent or to no citizen-parents, noting specifically that

“some authorities” hold so. The Court, however, expressly declined to rule on that subject in this

particular case. In dicta, that is, in a discussion not directly relevant to or part of the holding in the

case, the Court explained:

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

131

10 OP. ATTY. GEN. 382, 389, 394-395 (November 29, 1862). Emphasis in original.

10 OP. ATTY. GEN. 328 (September 1, 1862).

133

Minor v. Happersett, 88 U.S. 162, 166-167 (1875).

134

Id. at 167-168.

132

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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. 135

Those issues or “doubts” raised in dicta by the Supreme Court in Happersett in 1875 were,

however, answered by the Supreme Court in a later decision in 1898, in United States v. Wong

Kim Ark, which clearly repudiated the narrow and exclusive “original-community-of-citizens”

reasoning of the Court in Dred Scott based on lineage and parentage, in favor of interpreting the

Constitution in light of the language and principles of the British common law from which the

concept was derived. The majority opinion of the Court clearly found, by any fair reading of its

reasoning, discussion, and holding, that every person born in the United States and subject to its

jurisdiction (that is, not the child of foreign diplomats or of troops in hostile occupation),

regardless of the citizenship of one’s parents, is a “natural born” citizen, and that the Fourteenth

Amendment merely affirmed the common law and fundamental rule in this country that one born

on the soil of the United States and subject to its jurisdiction is a “natural born” citizen:

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 born here 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

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. His

allegiance to the United States is direct and immediate, and although but local and

temporary, continuing only so long as he remains within our territory, is yet, in the words

of Lord Coke, in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for

if he hath issue here, that issue is a natural born subject”; and his child, as said by Mr.

Binney in his essay before quoted, “if born in the country, is as much a citizen as the

natural-born child of a citizen, and by operation of the same principle.” 136

The Supreme Court in Wong Kim Ark cited with approval to an earlier decision of a federal circuit

court, written by Supreme Court Justice Swayne sitting on circuit, explaining that

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 in England.... 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

135

Minor v. Happersett, at 167-168. Emphasis added. Any analysis of the distinction between “holding” and dicta is

simplified in Minor v. Happersett, as the Supreme Court expressly explained that “For the purposes of this case it is not

necessary to solve” the issue of parental citizenship, thus clearly stating that its discussion was not part of, and the

resolution of the issue not necessary to, the underlying holding or ruling of that case.

136

169 U.S. at 693. The Court also found in this case that those who are “subject to the jurisdiction” of the United

States means those who come within the jurisdiction of its laws, such that jurisdiction may be exercised over them, thus

clarifying some confusion that might have arisen from dicta in an earlier Supreme Court case (The Slaughterhouse

Cases, 16 Wall. (83 U.S.) 36, 73 (1874)). 169 U.S. at 687, 693.

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obtained here with the same vigor, and subject to the same exceptions, since before the

Revolution.137

The underlying opinions and reasoning of the Attorney General in 1862 (citing the historical

intent, understanding, and common law principles relating to citizenship), the federal appellate

court opinion written by Supreme Court Justice Swayne in 1866, and the detailed discussion of

citizenship and the holding by the Supreme Court in Wong Kim Ark in 1898, citing to judicial

precedents such as The Charming Betsey (1804); Inglis v. Sailor’s Snug Harbor (1830), McCreery

v. Somerville (1824), and Lynch v. Clarke (1844), have been regularly confirmed and supported

by later Supreme Court and other federal court decisions finding that the two general categories

of “citizens” are: (1) those who are “natural born” citizens, that is, those who are citizens “by

birth” or “at birth,” including all native born citizens, and (2) those who were born “aliens” and

must be “naturalized” to be citizens.138 As explained by the Supreme Court in 1998:

There are “two sources of citizenship, and two only: birth and naturalization.” United

States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Within the former category, the

Fourteenth Amendment of the Constitution guarantees that every person “born in the

United States, subject to the jurisdiction thereof, becomes at once a citizen of the United

States, and needs no naturalization.” 169 U.S. at 702. Persons not born in the United

States acquire citizenship by birth only as provided by Acts of Congress. Id. at 703.139

The interpretation that one who obtains “citizenship by birth” is a “natural born” citizen eligible

to be President, as distinguished from one who derives “citizenship by naturalization” and who is

not so eligible, was discussed by the Supreme Court as early as 1884:

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 the power to

establish an uniform rule of naturalization.” Constitution, art. 2, sect. 1; art. 1, sect. 8. 140

The federal courts have on numerous occasions examined those two categories of citizens of the

United States—“natural born” citizens (those who are citizens “by birth”), and “naturalized”

citizens (those who are born “aliens” and who must go through the process of “naturalization”)—

in the context of the various rights and duties of such citizens within these two categories. The

Court has thus explained that “eligibility to the Presidency” is one of the very few “rights and

prerogatives of citizenship obtained by birth in this country” which is not available to a

“naturalized” citizen.141 Similarly, the Court has noted: “The naturalized citizen has as much right

137

169 U.S. at 662-663, citing United States v. Rhodes, 27 Fed. Case 785 (No. 16151) (C.C. Ky. 1866).

Elk v. Wilkins, 112 U.S. 94, 101 (1884); Luria v. United States, 231 U.S. 9, 22 (1913); Rogers v. Bellei, 401 U.S.

815, 828 (1971); Schneider v. Rusk, 377 U.S. 163, 165 (1963); MacIntosh v. United States, 42 F.2d 845, 848 (2 nd Cir.

1930); Diaz-Salazar v. INS, 700 F.2d 1156, 1160 (7th Cir. 1982), cert. den. 462 U.S. 1132 (1983); Mustata v. U.S.

Department of Justice, 179 F.3d 1017,1019 (6th Cir. 1999); Robinson v. Bowen, 567 F.Supp. 1144, 1145-1146 (ND

Cal. 2008); Hollander v. McCain, 566 F.Supp. 63, 66 (D.N.H 2008); note also state court in Ankeny v. Governor of the

State of Indiana, 916 NE2d 678 (2009), petition to transfer jurisdiction denied (Ind. Supreme Court, April 5, 2010).

139

Miller v. Albright, 523 U.S. 420, 423-424 (1998). See also Scalia, J. and Thomas, J., concurring: “The Constitution

‘contemplates two sources of citizenship, and two only: birth and naturalization.’” When one is born “in” the United

States and “subject to the jurisdiction” of the United States that person becomes a citizen “at birth,” that is, “becomes at

once a citizen of the United States, and needs no naturalization.” 523 U.S. at 461, citing Wong Kim Ark, 169 U.S. at

702.

140

Elk v. Wilkins, 112 U.S. 94, 101 (1884). Emphasis added.

141

Knauer v. United States, 328 U.S. 654, 658 (1946): “Citizenship obtained through naturalization is not a secondclass citizenship. It has been said that citizenship carries with it all the rights and prerogatives of citizenship obtained

by birth in this country ‘save that of eligibility to the Presidency.’”

138

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as the natural-born citizen to exercise the cherished freedoms of speech, press and religion....”;142

and the Court has examined the right of New York to require its “class of civil servants to be

citizens, either natural born or naturalized.”143 The United States Court of Appeals for the 9th

Circuit more recently explained that “once naturalized [appellant] is afforded precisely the same

protection of his right to associate as is a natural born citizen.”144 Referring specifically to

eligibility to the office of President, a United States Court of Appeals found:

No more is demanded of an alien who becomes a citizen than a natural-born citizen, and,

when an alien becomes a citizen, he is accorded all the rights and privileges afforded to a

natural-born citizen except eligibility to the presidency. 145

It should be noted that numerous constitutional scholars and commentators have used the term

“native born” or “native citizen” in a manner which might in some contexts be considered

synonymous with “natural born,” to indicate a U.S. citizenship from birth in relation to

Presidential eligibility, and to distinguish such eligibility from one who is a “naturalized” citizen.

James Kent, for example, in his Commentaries on American Law, explained: “As the President is

required to be a native citizen of the United States, ambitious foreigners can not intrigue for the

office, and the qualification of birth cuts off all those inducements from abroad to corruption,

negotiation, and war....”146 Similarly, Justice Joseph Story used the term “native citizen” in a

treatise on the Constitution: “It is not too much to say that no one but a native citizen, ought

ordinarily to be entrusted to an office so vital to the safety and liberties of the people.”147 As

noted in the legal treatise from1803 by the noted legal scholar St. George Tucker, editing

Blackstone’s works and placing them in an American context: “That provision of the Constitution

that requires that the President be a native-born citizen (unless he were a citizen of the United

States when the Constitution was adopted) is a happy means of securing against foreign

influence....”148

Although the term “native born” citizen or “native citizen” was seemingly used synonymously

with “natural born” in reference to presidential eligibility by such noted constitutional scholars, it

is most often not necessarily considered a specific term of art in a legal sense and does not appear

in the Constitution. In common usage with respect to U.S. citizenship, it may also more narrowly

mean anyone born physically within the geographic boundaries of the United States (without

reference to the citizenship of one’s parents). In one of the most extensive and widely respected

142

Baumgartner v. United States, 322 U.S. 665, 680 (1944) (emphasis added). The Court also noted there: “Under our

Constitution, a naturalized citizen stands on equal footing with the native citizen in all respects save that of eligibility to

the Presidency.” Id. at 673.

143

Sugarman v. Dougall, 413 U.S. 634, 661 (1973) (Rehnquist, J., dissenting, as to whether such distinction between

citizens and aliens in New York’s civil service law violates equal protection clause).

144

Price v. United States Immigration and Naturalization Service, 941 F.2d 878, 884-885 (9th Cir. 1991). Note also

Justices Rutledge and Murphy concurring in a case concerning denaturalization, comparing the rights of a “natural-born

citizen [to] his birthright” citizenship and the rights of “naturalized” citizens. Klapprott v. United States, 335 U.S. 601,

617 (1949).

145

MacIntosh v. United States, 42 F.2d 845, 848 (2nd Cir. 1930), reversed on other grounds, United States v.

MacIntosh, 283 U.S. 605 (1931). The Supreme Court, in the appeal of this case, similarly found: “The alien, when he

becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those

citizens who are native born.” 283 U.S. at 623-624.

146

Kent, COMMENTARIES ON AMERICAN LAW, at 273 (Vol. I, 2d ed. 1832).

147

Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES, §271, at 167 (Boston 1840).

148

St. George Tucker, William Blackstone, BLACKSTONE’S COMMENTARIES: WITH NOTES AND REFERENCE TO THE

CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND OF THE COMMONWEALTH OF

VIRGINIA, Vol. I, App. at 323 (Philadelphia 1803).

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multi-volume treatises on immigration and naturalization laws, Immigration Law and Procedure,

the authors discuss the meaning of the term “native-born”:

[a] Native-Born Citizens

This is by far the largest group of U.S. citizens, and their status is acquired simply

through birth in the United States, as described in Chapter 92 below. The Constitution

does not refer to native-born citizens, although it does mention natural-born citizens. Nor

does this term appear in the statute, which includes the native born among various

categories who acquire citizenship at birth. However, the designation of the native born is

an accurate and convenient one, generally used in colloquial and legal discussions. 149

Under common, modern understanding and later Supreme Court explanations, “natural born”

citizens would include “native born” U.S. citizens, that is, those born physically within the

borders of the country, but might also include others whose citizenships were “obtained by birth”

in other ways. The Supreme Court of the United States has on several occasions also used the

terminology “native born” citizens or “native” citizens to distinguish such citizenship “at birth”

from those who have obtained U.S. citizenship through “naturalization.” Even considering that

the Court was using the terms in a narrow sense, and putting aside for the moment the issue of

children born abroad of U.S. citizens, it is clear that the Supreme Court in these instances

indicated that, at the least, all of those persons obtaining citizenship by birth within the

geographic area of the United States (i.e., “native born” citizens) were eligible for the presidency

(as being within the category of “natural born” citizens), as opposed to “naturalized” citizens. In

Schneider v. Rusk, the Supreme Court appeared to use the term “native born” as synonymous and

interchangeable with the term “natural born” in referencing those citizens eligible for the

presidency, as opposed to “naturalized” citizens who are not eligible:

We start with 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, § 1.150

A similar distinction between “naturalized” citizens who are not eligible to the Presidency, and

those who are “native” citizens (that is, those who are citizens by birth in the country) who are

eligible was made in the earlier Supreme Court case of Luria v. United States:

Citizenship is membership in a political society, and implies a duty of allegiance on the

part of the member and a duty of protection on the part of society. These are reciprocal

obligations, one being a compensation for the other. Under our Constitution, a naturalized

citizen stands on an equal footing with the native citizen in all respects save that of

eligibility to the Presidency.151

The Supreme Court in 1929, in United States v. Schwimmer, had stated in a similar manner that

“Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do

native born citizens,”152 and noted again in 1931 that, “The alien, when he becomes a naturalized

149

Gordon, Mailman, & Yale-Loehr, IMMIGRATION LAW AND PROCEDURE, Vol. 7, §91.02[4][a] (rev. ed. 2010).

Emphasis added. See also United States v. Wong Kim Ark, 169 U.S. at 674-675.

150

377 U.S. 163, 165 (1963).

151

231 U.S. 9, 22 (1913). This case cites further to Osborn v. United States Bank, 9 Wheat. (22 U.S.) 737, 827 (1824),

in which Chief Justice Marshall noted the distinctions between a “naturalized citizen” and a “native citizen,” noting that

the “naturalized citizen … becomes a member of the society, possessing all the rights of a native citizen …. He is

distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction .…”

152

United States v. Schwimmer, 279 U.S. 644, 649 (1929).

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citizen, acquires, with one exception, every right possessed under the Constitution by those

citizens who are native born.”153

Although a small faction of advocates now apparently attempt to cast doubt as to whether every

so-called “native” born U.S. citizen (having been born within the borders of this country) is a

“natural born” citizen under the Constitution, all doubt in the judicial arena has been resolved for

more than a century in favor of “natural born” status of such individuals who are citizens “by

birth” or “at birth.” As discussed in more detail in the following section of this report, there have

been some legitimate legal arguments and varying opinions about the status of foreign born

children of U.S. citizens as being either “natural born” citizens under common law principles, or

citizens who are, arguably, “naturalized” or made U.S. citizens by statute. There appears,

however, to be no legitimate legal issue outstanding concerning the eligibility of all citizens of the

United States who are born in the country to be President. The case law in the United States, as

well as the clear historical record, does not support the argument or contention that there is some

further or additional “subcategory” of “citizen” of the United States who, although born in the

country and subject to the jurisdiction of the United States, is neither a “natural born” citizen nor

a “naturalized” citizen.154 Rather, as the cases discussed above demonstrate, the categories

uniformly recognized and referred to in case law in the United States as “citizens” of the United

States are “natural born” citizens, that is, those who are citizens “at birth,” as opposed to

“naturalized” citizens, that is, those who are aliens at birth and must go through naturalization to

become citizens.

Legal Cases and Birth Outside of the United States

During the 2008 presidential campaign between Senators McCain and Obama, several lawsuits

were initiated challenging the “natural born” citizenship eligibility of Senator McCain who was

not born “in” the United States, but rather in the Panama Canal Zone in 1936. Because the place

of birth is the concept that principally and traditionally governs strict common law natural born

citizenship in the United States,155 questions have arisen as to whether those born outside of the

geographic boundaries of the United States to United States citizen-parents ̶ and who thus are

citizens at birth by descent (by way of statute)—should also be considered “natural born” citizens

eligible to be President.

The legal and historical questions concerning those U.S. citizens who are born abroad and

eligibility were summarized in the treatise Immigration Law and Procedure:

153

United States v. MacIntosh, 283 U.S. 605, 623-624 (1931).

As to the possibility of the rather unique argument that U.S. citizens born within the United States (sometimes

referred to as “native” born citizens) to non-citizen parents could be somehow considered “naturalized” citizens, the

Supreme Court cases noted immediately above clearly repudiate that notion by distinguishing native born citizens from

naturalized citizens. As explained by the Supreme Court in Miller v. Albright, 523 U.S. 420, 423-424 (1998), every

person “born in the United States, subject to the jurisdiction thereof, becomes at once a citizen of the United States, and

needs no naturalization.”

155

Rogers v. Bellei, 401 U.S. 815, 828 (1971): “We thus have an acknowledgment that our law in this area follows

English concepts with an acceptance of the jus soli, that is, the place of birth governs citizenship status except as

modified by statute”; United States v. Wong Kim Ark, 169 U.S. supra at 693: “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 ....”; Miller v. Albright, 523 U.S. 420, 434, n.11 (1998): other than as provided by statute “citizenship does

not pass by descent”; Lynch v. Clarke, 3 N.Y. Leg. Obs. 236, 243-244 (1 Sand. ch. 583) (1844): “... at the Declaration

of Independence, by the law of each and all of the thirteen states, a child born within their territory and ligeance

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”; 10 OP. ATTY. GEN. 382, 394-395 (November 29, 1862).

154

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[c] Natural-Born Citizens

Under the Constitution, only “natural born” citizens are eligible to become President or

Vice President of the United States. The Constitution nowhere defines this term, and its

precise meaning is still uncertain. It is clear enough that native-born citizens are eligible

and that naturalized citizens are not. The doubts relate to those who acquire U.S.

citizenship by descent, at birth abroad to U.S. citizens.

“Natural born citizen” is an archaic term, derived from ancient British antecedents. Other

than its use in the Presidential Qualifications Clause, its only other use was in the

provision for citizens by descent in the naturalization statute enacted by the first Congress

in 1790.

The uncertainty concerning the meaning of the natural-born qualification in the

Constitution has provoked discussion from time to time, particularly when the possible

presidential candidacy of citizens born abroad was under consideration. There has never

been any authoritative adjudication. It is possible that none may ever develop. However,

there is substantial basis for concluding that the constitutional reference to a naturalborn citizen includes every person who was born a citizen, including native-born citizens

and citizens by descent.156

It has been noted by certain proponents of a narrow interpretation of natural born citizen (to

include only those born in the United States) that the Fourteenth Amendment now clearly

provides that a U.S. citizen is one who is either “born or naturalized in the United States.” Under

such reasoning, it is argued that a “citizen” of the United States would be a citizen only or

exclusively by virtue of either being “born ... in” the United States (under the common law

principles of jus soli as reflected in the Fourteenth Amendment), or by virtue of being

“naturalized” in the United States, which some argue means that one is made a citizen by the

operation of statutory law. Earlier federal court cases gave credibility to this version of who

would be a native or natural born citizen, as opposed to a “naturalized” citizen. As explained by

the Supreme Court in Wong Kim Ark:

Every person born in the United States, and subject to the jurisdiction thereof, becomes at

once a citizen of the United States, and needs no naturalization. A person born out of the

jurisdiction of the United States can only become a citizen by being naturalized, either by

treaty, as in the case of annexation of foreign territory, or by authority of Congress,

exercised either by declaring certain classes of persons to be citizens, as in the

enactments conferring citizenship upon foreign-born children of citizens, or by enabling

foreigners individually to become citizens by proceedings in the judicial tribunals, as in

the ordinary provisions of the naturalization acts.157

Under such argument, a person who is born of American parents abroad, although clearly a

“citizen” of the United States by law, is one who is not a citizen by virtue of being “born ... in”

the United States,158 and must, therefore, be one of those citizens who has been “naturalized” by

156

7 IMMIGRATION LAW AND PROCEDURE at §91.02[4][c]. Emphasis added, footnotes omitted.

169 U.S. at 702-703. Emphasis added.

158

See, e.g., “Insular cases” where the Supreme Court, in another context, found that the phrase “within the United

States” means within the geographical limits of the states and the District of Columbia, and in those territories under

the jurisdiction of the United States only if they have been “incorporated” into the United States. Downes v. Bidwell,

182 U.S. 244, 250-251 (1901); Balzac v. Porto Rico, 258 U.S. 298, 304-305 (1922). In Rabang et al. v. Immigration

and Naturalization Service, 35 F.3d 1449 (9th Cir. 1994), cert. denied, sub nom. Sanidad v. INS, 515 U.S. 1130 (1995),

the Court of Appeals found that those born in the Philippines, at the time it was a United States possession, were not

citizens at birth merely because of their place of birth since they were not born “in” the geographic United States,

regardless of the exercise of American jurisdiction over the territory.

157

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the operation of law, even though such naturalization was “automatic” at birth. It is therefore

argued that such citizen should not be considered a “natural born” citizen, but rather a

“naturalized” citizen who is not eligible for the Presidency. Some earlier federal cases had, in

fact, specifically held that a person who was born abroad of a father who was a naturalized

American citizen, and who therefore was a citizen of the United States by virtue of a statutory

provision, was himself a “naturalized” American citizen. In Zimmer v. Acheson, the United States

Court of Appeals for the 10th Circuit found that the appellant, who had been born in Germany to a

father who had been a naturalized U.S. citizen, was himself a “naturalized” citizen who could be

expatriated under the provisions and requirements of the then-existing federal law:

There are only two classes of citizens of the United States, native-born citizens and

naturalized citizens; and a citizen who did not acquire that status by birth in the United

States is a naturalized citizen.

Revised Statutes § 1993, in force at the time of the birth of Harry Ward Zimmer

[appellant], provided: “All children heretofore born or hereafter born out of the limits and

jurisdiction of the United States, whose fathers were or may be at the time of their birth

citizens thereof, are declared to be citizens of the United States; but the rights of

citizenship shall not descend to children whose fathers never resided in the United

States.”

If Werner Herman Zimmer [the appellant’s father], by virtue of his naturalization on

October 30, 1896, was a citizen of the United States on August 9, 1905, the date of the

birth of Harry Ward Zimmer, then the latter, at the time of his birth, became a citizen of

the United States by virtue of the foregoing statute, but his status as a citizen was that of a

naturalized citizen and not a native-born citizen.159

In Rogers v. Bellei,160 a case dealing with the expatriation of a U.S. citizen-by-descent (having

been born abroad to a U.S. citizen mother), the Court found that the subsequent conditions

Congress placed on such citizens-by-descent—requiring them to reside in the United States at

some point to retain their U.S. citizenship—were not

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