Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
significantly, no historical nor controlling legal holding in American jurisprudence to support the argument that parental citizenship governs and controls the eligibility of a native born U.S. citizen to be President. As indicated in the discussion of the history of the constitutional provision, there is also no justification for this unique theory, which would exclude an entire class of native born U.S. citizens from eligibility for the Presidency, in any of the statements or writings of the framers of the Constitution, or in the entire record of the ratification debates of the United States Constitution.[1]
In 1825, in a significant and widely recognized work on the Constitution, William Rawle specifically noted that the term “natural born citizen” as used in the Constitution would include “every person born within the United States… whether the parents are citizens or aliens….”[2] Similarly, in his treatise on Citizenship of the United States, Frederick Van Dyne, Assistant Solicitor of the Department of State, explained in 1904 that the rule governing citizenship is not one derived from “international law” or the so-called “law of nations,” but is rather municipal law which “[e]very nation determines for itself’ and, in the United States, derives from the common law principle of jus soli, dependant “on the place of birth,” as modified by statute incorporating the principles of jus sanguinis to include the children of citizens “born out of the jurisdiction of the United States.”[3] In reviewing Supreme Court decisional material, the author in this treatise noted that the Fourteenth Amendment and the 1866 civil rights act “reaffirm the fundamental principle of citizenship by birth” which “was generally held to be regulated by the common law, by which all persons born within the limits and allegiance of the United States were deemed to be natural born citizens thereof.”[4]
Although the Supreme Court has never had to address the issue of “natural born” citizenship directly in the context of a challenge to the eligibility of one to be President, the federal courts have discussed the concept on numerous occasions for more than 200 years and have, other than in the Dred Scott decision, consistently relied upon the place of birth, without regard or reference to the status of one’s parents, as the determining factor of natural born citizenship. In a celebrated state court ruling, in 1844, providing a detailed explanation of the legal history of the citizenship
- ↑ As an historical matter it may be noted that Chester A. Arthur, 21st President of the United States, was apparently born in the United States (despite rumors being spread by opponents that he was born in Canada) in 1829 to a U.S. citizen-mother and a father who was not a U.S. citizen, but rather a citizen of Ireland and a British subject, although there have been assertions by some that this fact was not widely known at the time. See Thomas Reeves, Gentleman Boss: The Life of Chester Alan Arthur, 202–203 (1975)). There was also a question raised concerning Charles Evans Hughes, Republican candidate for President who narrowly lost to Woodrow Wilson in 1916, and who was born in the United States to parents who were British subjects. Note Medina, The Presidential Qualifications Clause, supra at 267, n. 72, citing to Long, Is Mr. Charles Evans Hughes a “Natural Born Citizen” Within the Meaning of the Constitution? 49 Chic. Law News 146 (1916). Although a question was raised by this individual at the time of Hughes’ candidacy, it did not appear to be an issue of any significance for Hughes or other presidential or vice-presidential candidates who were born in the U.S. of recent immigrants, as the “two-citizen-parent” argument with respect to native born U.S. citizens has not garnered serious legal consideration after Wong Kim Ark in 1898. The question did not appear to merit even a mention in the definitive, two-volume biography of Hughes. Merlo J. Pusey, Charles Evans Hughes, 316–366 (New York 1963).
- ↑ William Rawle, A View of the Constitution of the United States of America, at 80 (1825).
- ↑ Frederick Van Dyne, Citizenship of the United States, at 3–4 (New York 1904).
- ↑ Id. at 4, 12. Emphasis added. Van Dyne explained in his treatise on citizenship that children born in the United States, even of alien parents (other than for the exceptions of diplomats and hostile troops) are natural born citizens of the United States, and distinguished as mere obiter dictum contrary comments on “jurisdiction” by the Court in The Slaughter House Cases, 16 Wall. (83 U.S.) 36, 73 (1872) which, even by 1904, had been shown to be no longer controlling as to those points. Id. at 12–23.
