1. NATURAL BORN
CITIZENSHIP
FROM FEUDAL ORIGINS TO MODERN TIMES
AN OVERVIEW & INTRODUCTION
BY JASON SHEPHERD, Esq.

2. 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)

3. OVERVIEW
 Historical Overview
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Feudal Origins
English Common Law
Constitutional Law
 Birth on U.S. Soil
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Subject to the jurisdiction…
Parents’ Citizenship
United States v. Wong Kim Ark
 Birth on Foreign Soil
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Roman Law
Common law history
The Act of March 26, 1790
 Modern Implications
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Dual Citizenship
Renunciation of Citizenship
 Conclusions
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Ongoing Debate
The “Foreign Born” President
 Questions and Answers

4. 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

5. 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…”

6. 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.

7. 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)

8. 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).

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. United States v. Wong Kim Ark (1898) - 2
The Court concluded:
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“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.”

16. 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.

17. 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.”

18. 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).

19. Act of March 26, 1790 - Continued
“Provided, that the right of citizenship shall not
descend to persons whose fathers have never
been resident in the United States…”

20. MODERN IMPLICATIONS
Dual Citizenship:
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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.

21. MODERN IMPLICATION
Renouncing Citizenship
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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.

22. CONCLUSIONS
Ongoing debate
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“[A] majority of commentators today argue that the
Presidential Eligibility Clause incorporates both the commonlaw 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.

23. The Foreign Born President
Father was not a U.S. citizen
During 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 dual citizenship would also make
him ineligible to hold the Presidency.

24. The Foreign Born President - Chester A. Arthur

25. QUESTIONS?
Thank You
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