FROM FEUDAL ORIGINS TO MODERN TIMESAN OVERVIEW & INTRODUCTION

BY JASON SHEPHERD, Esq.

NATURAL BORN CITIZENSHIP

Introduction

“I can entertain no doubt, but that by the law of the United States, every person born

within the dominions and allegiance of the United States, whatever were the situation of

his parents, is a natural born citizen.”

Lynch v. Clarke and Lynch, Chancery Court of New York (1843), New York Legal Observer, Vol. 3 (1845)

OVERVIEW

Historical Overview Feudal Origins English Common Law Constitutional Law

Birth on U.S. Soil Subject to the jurisdiction… Parents’ Citizenship United States v. Wong Kim

Ark Birth on Foreign Soil

Roman Law Common law history The Act of March 26, 1790

Modern Implications Dual Citizenship Renunciation of Citizenship

Conclusions Ongoing Debate The “Foreign Born”

President Questions and Answers

HISTORIC OVERVIEW

“A citizen is nothing more than an immigrant with seniority.”

- Nobel Laureate Gerhard Herzberg

“When an alien lives with you in your land, do not mistreat him. The alien living with you must be treated as one of your native-born. Love him as yourself, for you were aliens in Egypt. I am the

LORD your God.”- Leviticus 19:33-34

Feudal Origins

The earliest statute was passed in the reign of Edward III. In the Rolls of Parliament of 17 Edw. III. (1343), it is stated that, “there was no manner of doubt that the children of our lord, the king, whether they were born on this side the sea or beyond the sea, should bear the inheritance of their ancestors…”

Development of Common Law Doctrines

Jus Sanguinis - the “right of the blood.” Citizenship inherited from parent(s) citizenship.

Jus Soli – the “right of the land.” Citizenship is granted because of birth in a nation’s territory.

Both rules of citizenship became engrained in English Common Law by the time of the

Founding.

English Common Law

[A]ll children, born out of the king's ligeance, whose

fathers were natural-born subjects, are now natural-born subjects themselves,

to all intents and purposes, without any exception;

unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

William Blackstone, Commentaries 1:354, 357--58, 361--62 (1765)

English to American Common Law

“There is, however, one clear exception to the statement that there is no national common law. The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Smith v. Alabama, 124 U. S. 478, 8 Sup. Ct. 569 (1888).

U.S. Constitution

“No person except a natural born Citizen, or a Citizen of the United States, at the time of

the Adoption of this Constitution, shall be eligible to the Office of President…”

U.S. Const. art. 2, §1.  

Constitutional Types of Citizenship

By birth – Only those born a U.S. Citizen may be President of the United States.

By naturalization – Representatives and Senators may be U.S. Citizens through Naturalization.

John Jay’s Letter to George Washington

New-York, 25th July, 1787. 

Dear Sir, 

Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government ; and to declare expressly that the commander in chief of the American army shall not be given to, nor devolve on any but a natural born citizen.

 I remain, dear sir,

 Your faithful friend and servant,

 John Jay.

Birth on U.S. Soil – U.S. Jurisdiction

Common Law and the Constitution through the 14th Amendment grant citizenship to those born on U.S. soil and who are “subject to the jurisdiction thereof.”

This prevented Native Americans from becoming citizens because, although they were born in the U.S., they were deemed loyal to their tribe and not subject to the jurisdiction of the United States.

Children of foreign officials, by this rule and through customary international law and the common law, are also not subject to the jurisdiction of the U.S.

Birth on U.S. Soil – Non-Citizen Parents

Common law dictates that even children of those temporarily in the U.S. are “natural born citizens.”

Conflicts with laws that provide that children born on foreign soil retain the citizenship of their parents.

Case law such as U.S. v. Wong Kim Ark (1898) has helped to set the precedent.

United States v. Wong Kim Ark (1898)

Wong Kim Ark was the U.S. born child of Chinese immigrants (LPR).

U.S. law prohibited Chinese nationals from becoming U.S. Citizens.

Wong was detained coming back from a visit to China and faced deportation.

United States contended Wong was not a citizen because his parents could never be citizens.

United States v. Wong Kim Ark (1898) - 2

The Court concluded:

“The refusal of congress to permit the naturalization of Chinese persons cannot exclude Chinese persons born in this country from the operation of the constitutional declaration that all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

“The laws conferring citizenship on foreign-born children of citizens do not supersede or restrict, in any respect, the established rule of citizenship by birth.”

Birth on Foreign Soil – Roman Law

Roman law first introduced the concept of jus sanguinis – allowing citizenship to pass from the parents to the child, regardless of where

the child was born.

Birth on Foreign Soil – Common Law

Blackstone’s Commentaries (1765) expressed citizenship in terms of allegiance. The

children of those who owed allegiance to the crown also owed allegiance, regardless of

place of birth.

“Allegiance is the tie, or ligamen, which binds the subject to the king, in return

for that protection which the king affords the subject.”

Birth on Foreign Soil – Act of March 26, 1790

In its first naturalization statute, Congress declared that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens…” 1

Stat. 104 (1790).

“Provided, that the right of citizenship shall not descend to persons whose fathers

have never been resident in the United States…” 

Act of March 26, 1790 - Continued

MODERN IMPLICATIONS

Dual Citizenship: While the principles of jus sanguinis and jus soli would

seem to have long created dual citizenship, the principle is modern.

In the past, one’s citizenship would have to be determined upon reaching age 21.

Many nations in the past did not recognize jus soli citizenship as applying to the children of foreign nationals.

Duel citizenship does not remove an individual’s status as a natural born citizen, but would seem to contradict the spirit of the clause as outlined by John Jay, preventing dual loyalty.

MODERN IMPLICATION

Renouncing Citizenship Afroyim v. Rusk, 387 U.S. 253 (1967) affirmed

citizenship is an individual right which must be affirmatively renounced by an individual on foreign soil.

The mere act of swearing allegiance in an oath of citizenship to another nation will not necessarily cause one to lose their U.S. citizenship.

A minor cannot lose his/her citizenship through the action of parents or guardians.

CONCLUSIONS

Ongoing debate “[A] majority of commentators today argue that the

Presidential Eligibility Clause incorporates both the common-law and English statutory principles, and therefore, Michigan Governor George Romney, who was born to American parents outside of the United States, was eligible to seek the Presidency in 1968” – Heritage Foundation’s Guide to the Constitution.

U.S. Senate passed a non-binding resolution asserting John McCain, born of U.S. parents on foreign soil, was a natural born citizen.

The Foreign Born President

Father was not a U.S. citizenDuring the campaign, a prominent Northeastern

attorney questioned whether the candidate was born in the U.S.

Some media picked up on the story and citizen groups demanded proof of his birth in the U.S.

Even if he was born in the U.S., the attorney contended that he also had the foreign citizenship of his father and his duel citizenship would also make him ineligible to hold the Presidency.

The Foreign Born President - Chester A. Arthur

QUESTIONS?

Thank You

The Tale of Guillermo Schmidt

Guillermo Schmidt is a Mexican citizen. He was born in Mexico City in 1937. He has been in the U.S. countless times, but apart from attending high school in Michigan from age 14 – 17, he has never lived in the United States, until three years ago when he secretly crossed the border looking for better work opportunities in the U.S.

 His father was born in Northwestern Mexico in 1901, and his

mother was born in Central Mexico. His paternal grandfather was born in New York in 1850, the son of German immigrants, but lived for much of his youth in California. He moved to Mexico after marrying a Mexican national. After dying suddenly in 1905, his wife moved with the children to Arizona where she raised her children, eventually dying in Arizona in 1940.

 Guillermo is now facing deportation. Can Immigration and

Customs Enforcement (ICE) deport Guillermo as an illegal alien?