Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
adopted in the Constitution in 1787.[1] If, as noted by the Supreme Court in an opinion authored by Justice Story, the “common law of England is not to be taken, in all respects, to be that of America,”[2] there may be accorded some significance to an analysis of what the term “natural born” citizen was commonly understood to mean in the American colonies at the time of the revolution and framing of the Constitution.
It is, of course, always a somewhat speculative exercise to attempt to discern the “common understanding” of a group of individuals who may be geographically, professionally, and politically diverse, particularly during a period many years removed from the current time.[3] The fact that no discussion appears in the notes of the Federal Convention of 1787 on the presidential eligibility clause, and the fact that the actual debates and discussions in the Convention were held in secret with no official journal of the debates being kept (other than for recording votes) highlight the problems in such speculation. That being said, however, one might argue that there existed what might be called a “common” or “general understanding,” or at least common “usage” of the term “natural born,” as it related to those who were considered “natural born” subjects of England in the American colonies at the time of independence, and “natural born” citizens at the time of the adoption of the Constitution. The “state of the law” in colonial America concerning who was a “natural born” subject of England under English laws, both common law as well as statutory laws, was certainly known to the framers since, as noted by the Supreme Court, “These statutes applied to the colonies before the War of Independence.”[4]
From examination of historical documents, it appears that the term “natural born” as it related to citizenship under English law and jurisprudence was a term widely known and used in the American colonies in the 1700’s, and was employed in the context and understanding of British common law as well as British statutory law. For example, more than a decade before John Jay had employed the term in his “hint” to General Washington at the Convention of 1787, the First Continental Congress of the American colonies, meeting in Philadelphia beginning in September of 1774, adopted a resolution asserting that the common law of England was fully applicable to the colonies in America, as were such statutory laws of England as would be relevant to their circumstances, and expressly included in the resolution an assertion of the rights of their
- ↑ One commentator has averred that whether or not the common law was modified by statute is irrelevant; the only relevant matter is what the “common understanding” of the meaning of “natural born” was at the time of the Convention of 1787, regardless of whether that meaning was based solely on British common law or partly on adopted statutes from England. Seligman, A Brief for Governor Romney’s Eligibility for President, 113 Cong. Rec. 35019, 35020 (1967).
- ↑ Van Ness v. Pacard, 27 U.S. at 143–144.
- ↑ Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, p. 6: “Both the framing of the Constitution in 1787 and its ratification by the states involved processes of collective decision-making whose outcomes necessarily reflected a bewildering array of intentions and expectations, hopes and fears, genuine compromises and agreements to disagree. The discussions of both stages of this process consisted largely of highly problematic predictions of the consequences of particular decisions. In this context, it is not immediately apparent how the historian goes about divining the true intentions and understandings of the roughly two thousand actors who served in the various conventions that framed and ratified the Constitution, much less the larger electorate that they claimed to represent. … For all these reasons, then, the ideal of “unbiased” history remains an elusive goal, while the notion that the Constitution had some fixed and well-known meaning at the moment of its adoption dissolves into a mirage.” See also Leonard W. Levy, Original Intent and the Framers’ Constitution, ix (1988): “For several decades after the ratification of the Constitution the fading memories of those who had attended the Philadelphia Constitutional Convention supplied the main evidence of the Framers’ intent. Even when those memories were fresh, the framers disagreed vehemently about what the Convention had meant or intended….” See also, id. at pp. 1–29.
- ↑ Weedin v. Chin Bow, 274 U.S. at 660.
