Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
With regard to the citizenship of children born in the United States to recent immigrants, it is significant to note that in this country in the late 1800{{SIC|’{{s, the public’s economic fears and hostility to foreigners led Congress to—in the words of one historian—“legitimize[] racism as national policy”[1] by adopting legislation to prevent immigration of Chinese laborers to the United States, and to prohibit anyone of Chinese nationality to obtain U.S. citizenship through naturalization.[2] Despite this law and its extensions, commonly known as the Chinese Exclusion Acts, the federal courts continually and consistently held that children born “in” the United States of Chinese nationals were “natural born” citizens of the United States, even though the parents were not, and could never be, U.S. citizens themselves under the exclusion laws. In one case concerning the identity of a petitioner, the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen….”[3] Similarly, in 1919, the United States Court of Appeals for the 5th Circuit ruled that the appellee, based solely on the fact that he was born in San Francisco, without any reference to the nationality of his parents, “is a natural-born citizen of the United States.”[4]
In a case that preceded the Supreme Court’s Wong Kim Ark decision, the United States Court of Appeals agreed with the petitioner’s claim to be “a natural-born citizen of the United States” because of his place of birth, that is, within the United States, even though his parents were both “aliens” of Chinese nationality who were in the United States privately and “not here in any diplomatic or other official capacity under the emperor of China.”[5] That federal court in 1884, relying on precedents including Assistant Vice-Chancellor Lewis Sandford’s opinion in Lynch v. Clarke, explained the concept in American jurisprudence that one is a “natural born” citizen when born in the United States, and subject to the jurisdiction of the United States,[6] and that such was the state of American law even before the adoption of the Fourteenth Amendment (for other than those brought into the United States under slavery):
- ↑ Andrew Gyory, Closing the Gate: Race, Politics, and the Chinese Exclusion Act, at 1–2, 16 (UNC Press 1998).
- ↑ 22 Stat. 58, May 6, 1882. The original restrictions were to run for 10 years, but were extended another 10 years by the so-called Geary Act in 1892 (27 Stat. 25, May 5, 1892), and then made permanent in 1902. The Chinese exclusion acts were repealed in 1943 (57 Stat. 600, December 13, 1943).
- ↑ Kwok Jan Fat v. White, 253 U.S. 454, 457 (1920). The Supreme Court also noted there: “It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.” 253 U.S. at 464.
- ↑ U.S. v. Low Hong, 261 F. 73, 74 (5th Cir. 1919).
- ↑ In re Look Tin Sing, 21 F. 905, 906 (Cal. Cir. 1884).
- ↑ That is, when the laws and jurisdiction of the United States are applicable to such person: “They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered….” 21 F. at 906.
and Schneider v. Rusk, 377 U.S. 163, 165 (1963). Furthermore, as discussed previously, noted constitutional scholars have also used the term “native born” citizen as a short-hand device to mean those born in the United States, without reference to lineage or ancestry, concerning those who are eligible to the presidency. Kent, Commentaries on American law, supra at 273; Story, A Familiar Exposition of the Constitution of the United States, at §271, p. 167; 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; 7 Gordon, Mailman, & Yale-Loehr, Immigration Law and Procedure, at §§91.02[4][a] and §91.02[4][c].
