Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
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….[1]
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 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),[2] 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.[3]
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statutory law pertaining to such things as inheritance (which prevailed in the states in this country unless expressly repealed), was that “persons born within the realm, although children of alien parents, were called ‘natural-born subjects.’”[4] Citing an earlier precedent, the Court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.”[5] 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.”[6]
- ↑ 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.
- ↑ 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.
- ↑ 169 U.S. at 658. Emphasis added.
- ↑ 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).
- ↑ 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.”
- ↑ 169 U.S. at 662–663 (emphasis added), citing United States v. Rhodes, 27 Fed. Case 785 (No. 16151) (C.C. Ky. 1866).
