Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
may have recommended the precise term to the Convention, would have intended to exclude from eligibility his own children who were born in Spain and France while Jay was representing the United States abroad:
The provision for “natural born Citizen” probably was aimed at immigrants, although the term is so unusual as to be vague…. [b]ut [it] had deep roots in British common law. In medieval times it had embodied the doctrine of jus soli: a natural born citizen was one born within the realm (on the soil, so to speak). But with increased commerce and travel, Parliament, starting in 1350, seemed to expand the definition of natural born to incorporate the doctrine of jus sanguinis. Now babies born of British citizens abroad or at sea were included as well. One can presume only that Jay and the delegates meant to apply the evolved, broader common law meaning of the term when they included it in the presidential qualifications clause. Certainly Jay did not mean to bar his own children born in Spain and France while he was on diplomatic assignments, from legal eligibility to the presidency.[1]
With respect to the common or general meaning of the term “natural born” to the framers of the Constitution in the context of those born abroad to U.S. citizens, it may be significant to note that the first Congress, under its express constitutional authority “to establish an uniform Rule of Naturalization,”[2] enacted the Naturalization Act of 1790.[3] The first of several such acts, this 1790 statute stated that
[T]he children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States….[4]
This early congressional act provides some argument that the term “natural born” citizen was seen to include more than merely the “native born,” that is, those born in the country (in accordance with the common law principle of jus soli), but also to include the long-standing English statutory recognition of citizenship by descent through one’s father when an individual is born abroad, that is, all of those who are citizens “at birth” or “by birth.” The significance of such a statute passed by the first Congress was, of course, the fact that many of the framers of the Constitution were Members of that first Congress, as well as the fact that the first Congress’s understanding of the meaning of the terms of the Constitution was most contemporaneous in time with the document’s adoption. One author has noted that of the “Committee of Eleven,” which first proposed to the Convention of 1787 the eligibility requirement of being a “natural born” citizen, 8 of the 11 committee members were in that first Congress, and none stated objections to or disagreement with the characterization of the term “natural born” by statute by the Congress.[5] The Supreme Court has expressly noted the weight of authority of early actions of the first Congress in explicating portions of the Constitution because of the make-up of that Congress, and
- ↑ Michael Nelson, Constitutional Qualifications for President, Presidential Studies Quarterly, Vol. XVII, No. 2, at 396 (Winter 1987), citing Gordon, Who Can Be President?
- ↑ U.S. Const. art. I., §8, cl. 4.
- ↑ Act of March 26, 1790, ch. 3, 1 Stat. 103, 104.
- ↑ The 1790 statute was repealed and superseded by a 1795 naturalization statute which omitted the phrase “natural born.” Act of January 29, 1795, ch. 20, 1 Stat. 414, 415. There is no legislative history indicating the reason for the deletion of that term; however, in that statute the phrase “shall be considered as citizens” referred to the status of minor children derivatively naturalized upon the naturalization of their parents, who are not “natural born,” as well as to the children born abroad to U.S. citizens, so it is possible that the deletion is merely a stylistic/grammatical decision.
- ↑ Lohman, 36 Gonzaga Law Review at 371.
