Page:Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement.pdf/31

 voluntary act, they expatriate themselves, and become citizens of another nation. For we have no law, (as the French have,) to decitizenize a citizen who has become such either by the natural process of birth, or by the legal process of adoption…. The Constitution itself does not make the citizens; it is, in fact, made by them. It only intends and recognizes such of them as are natural—home-born; and provides for the naturalization of such of them as were alien—foreign born….

As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we enjoy than the “accident at birth”—the fact that we happened to be born in the United States. And our Constitution, in speaking of natural-born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle… that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic…. [I]t follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the “natural-born” right as recognized by the Constitution…. That nativity furnishes the rule, both of duty and of right as between the individual and the government, is a historical and political truth…. Nevertheless, for the satisfaction of those who may have doubts upon the subject, I note a few books, which, I think, cannot fail to remove all such doubts: Kent’s Com., vol. 2, part 4, section 25; Bl. Com., book 1, chapter 10, p. 365; 7 Co. Rep., Calvin’s case; 4 Term Rep., p. 300, Doe vs. Jones; 3 Pet.Rep., p. 246; Shanks vs. Dupont; and see a very learned treatise, attributed to Mr. Binney, in Am. Law reporter, 193. The Attorney General thus opined that those who are “born” citizens of the United States, as opposed to those who are “aliens” and must go through the legal process of naturalization, are “natural born” citizens of this country, without any reference to the “citizenship” or nationality of their parents. The Attorney General’s opinion emphasized that these “natural born” citizens, those who are citizens of the United States at birth or “by birth,” including “every person” who is “home born,” are not within a very narrow or special category, but rather are “the mass of our citizens.” In an earlier formal opinion from Attorney General Bates to Secretary of State Seward, the Attorney General similarly concluded: “I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship.”

The Supreme Court itself soon began to question, re-evaluate, and move away from the legal reasoning underlying the Dred Scott decision. In one early Supreme Court case after Dred Scott, the Court narrowly applied the earlier theory of citizenship in Dred Scott (as being only the original community of people who ratified the Constitution and their progeny), and relied instead on the common law to discuss the concept of citizenship in the United States after the original generation of citizens. The Court noted that those children born on the soil of the United States to citizen-parents would clearly be among those who are “natural born” citizens under the common law, but did not rule or hold that such category of citizenship was exclusive to such children. The Supreme Court in Minor v. Happersett, in ruling in 1875 that women did not have the constitutional right to vote in federal or state elections (as a privilege or immunity of citizenship), raised and discussed the question in dicta as to whether one would be a “natural Rh