Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
with, but also expressly recognized the continued application of the British common law within this country.
Similar to the concept expressed in the original constitutions and enactments of the new states, Justice Story has also noted in a Supreme Court decision that we did not necessarily, however, adopt all of the British common law, but rather adapted it to our own situation.[1] An analysis of the term “natural born” citizen which begins with the British common law meaning of the phrase might thus not necessarily end there, but must also take into consideration the unique American experience, and the application and interpretation of the underlying concepts involved by the courts in the United States.[2]
Common Law and Persons Born “In” the Country
There appears to be very little scholarly or legal dispute as to the British common law applicable in England and in the American colonies with respect to those born “on the soil.” As to those children born in the geographic boundaries of the country, even of alien parents, the Supreme Court of the United States in United States v. Wong Kim Ark, citing the British decision in Calvin’s Case reported by Lord Coke,[3] found that such persons were, under British common law, considered “natural born” subjects (with minor exceptions for children born of foreign diplomatic personnel or of hostile military forces in occupation, that is, those not “under the jurisdiction” of that host country). This rule of law, noted the Court, applied to the American colonies at the time of the Declaration of Independence and, significantly, “in the United States afterwards, and continued to prevail under the Constitution….”[4]
The premiere treatise on British law at the time of the drafting of the Constitution, which was well-known and well-used in the colonies, was Blackstone’s Commentaries on the Laws of England (1765). Blackstone explained that “[t]he first and most obvious division of the people is into aliens and natural-born subjects,”[5] and that the “natural” allegiance due of “natural-born” subjects, as opposed to merely “local” allegiance of aliens and sojourners, “is such as is due from all men born within the king’s dominions immediately upon their birth.”[6] Blackstone traced the
- ↑ Van Ness v. Pacard, 27 U.S. [2 Peters] 137, 143–144 (1829).
- ↑ One Court of Appeals has noted, for example, that the British common law with respect to “natural born” subjects as those born within the entire “realm” of the British Empire, was not necessarily imported wholly into American jurisprudence, as those born in the possessions of the United States, or in unincorporated territories, such as in the Philippines, would not be “natural born” citizens of the United States, as they had not been born “in” the geographic area of the United States. Rabang v. INS, 35 F.3d 1449, 1454, n.9 (9th Cir. 1994), cert. denied, sub nom. Sanidad v. INS, 515 U.S. 1130 (1995).
- ↑ Calvin’s Case, 7 Rep. 1, 4b–6a, 18a, 18b (1608).
- ↑ 169 U.S. at 658. For a thorough history of the adoption of the English common law principles of citizenship, and the applications of those principles in the colonies, in the states, and then on a national basis in the United States, see Kettner, The Development of American Citizenship, 1608–1870 (U.N.C. Press 1978).
- ↑ Blackstone, Commentaries on the Laws of England, Volume I, “Of the Rights of Persons,” 354 (1765).
- ↑ Id. at 357–358: “Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection…. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered by any change of time, place or circumstance, nor by anything but the united concurrence of the legislature. An Englishmen who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. … Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king’s dominion and protection: and it ceases the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only….”
