Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
citizenship and categories of citizenship are a function of “municipal law”—the internal law of every country, as opposed to matters of international law or foreign law.[1]
If allowing the recognition of citizenship under the law of foreign nations were determinative of natural born citizenship in the United States—as now argued by some advocates—then the operation of foreign law would, in effect, impact and be determinative of who is eligible to be President of the United States, a result wholly at odds with U.S. national sovereignty, that is, the “inherent right of every independent nation” to determine what classes of persons are to be its citizens.[2] As explained by the Supreme Court in 1939:
On her birth in New York, the plaintiff became a citizen of the United States. … In a comprehensive review of the principles and authorities governing the decision in that case—that a child born here of alien parentage becomes a citizen of the United States—the Court adverted to the “inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.” United States v. Wong Kim Ark, supra, p. 668. As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality. [footnotes omitted] And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law, on the resumption of that citizenship by her parents, does not compel the conclusion that she lost her own citizenship acquired under our law.[3]
The fact that a foreign country might recognize or allow a claim of dual citizenship or nationality of a child born in the United States because of the nationality or heritage of the child’s mother or father, has never been determinative of “natural born” or other citizenship status in any case in American jurisprudence. The Court in Perkins v. Elg explained that dual nationality of a child does not affect the native-born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a “native-born American citizen,” even one with “dual citizenship,” who returns to the United States would qualify to be President:
One Steinkauler, a Prussian subject by birth, emigrated to the United States in 1848… and in the following year had a son who was born in St. Louis. Four years later Steinkauler returned to Germany taking this child and became domiciled in Weisbaden where they continuously resided…. On reviewing the pertinent points in the case, including the naturalization treaty of 1868 with North Germany, the Attorney General reached the following conclusion:
“Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States… [even though] the father, in accordance with the treaty and the laws, has renounced his American citizenship and his American allegiance and has acquired for himself and his son German citizenship and the rights which it carries….”[4]
Citizenship of Parents. Concerning specifically the reading into the Constitution of a two-citizen-parent requirement for “natural born” citizenship status, it should be noted that there is,
