Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
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.”[1]
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 an 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….[2]
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
- ↑ 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.”
- ↑ Edward S. Corwin, The President, Office and Powers, 1787–1984, at 38–39 (5th Revised ed. by Bland, Hindson, and Peltason, 1984). (Footnotes omitted).
