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McClellan’s citizenship

imageA commenter here kindly sent me a newspaper clipping from the Boston Globe, November 9, 1903. The topic was the citizenship of George B. McClellan (pictured right), newly elected Mayor of New York City and son of the Civil War general with the same name. Just as is the case with more modern presidential hopefuls George Romney and John McCain, the younger McClellan was not born in the United  States. He was  born in Germany and a dual citizen of the one by law because of his US citizen parents,  and the other because of his place of birth.

That McClellan was a US citizen at birth according to US law was unquestioned, but did he meet the constitutional requirement of being a natural born citizen?

Years ago in the public schools it was quite generally taught that a President of the United States must be a native born citizen of this country.

The Globe consulted a number of Boston lawyers and government officials seeking to answer the question of McClellan’s eligibility. Most thought that he was eligible, saying things like:

“Yes, he is eligible, as a natural born citizen means a citizen of the United States who became so at the moment of his birth. It not being necessary for Col McClellan to take out naturalization papers, It therefore follows that he is a natural born citizen. The law recognizes only the two classes, the natural born and the naturalized citizen.”

Others, however, disagreed. It’s interesting to read what Boston lawyers had to say on the subject over 100 years ago. The birthers, however, will not find any comfort for their position in the article. No one defined “natural born” as having to be both born in the country and to citizen parents.

7 Responses to McClellan’s citizenship

  1. avatar
    Paul Pieniezny January 21, 2012 at 9:48 am #

    I was a bit surprised by the phrase “born in Germany”. This looked like a historical error. Normally, German citizenship before 2000 was by blood only. Under Prussian law, he could not have been German.

    There is a perfect explanation: George B. McClellan was born in Dresden, in the Kingdom of Saxony, which until 1871 was independent from Prussia (not the entire GDR was ex-Prussian). And McClellan was born five years before that.

    If the article is correct, the citizenship law of the Kingdom of Saxony were different from those of both Prussia and Poland (which relied on jus sanguinis). Vattel, who most of his life worked for the King of Saxony which in those days was also the ruler of Poland, may not have liked that.

    This is what Wikipedia says about German citizenship now:

    “Children born on or after 1 January 2000 to non-German parents acquire German citizenship at birth if at least one parent has a permanent residence permit; and has been residing in Germany for at least eight years.

    Such children will be required to apply successfully to retain German citizenship by the age of 23. Assuming the laws (very unlikely) are not changed prior to 2023, they will normally be required to prove they do not hold any other foreign citizenship. The only exceptions are EU citizens and citizens of countries where it is impossible to lose your citizenship, like Morocco or Iran, for example.”

    Seems rather close to automatic if you ask me, and like McClellan and Obama they can do or not do something about it at 21-23. So the claim that only the USA and Canada provide automatic citizenship at birth on the soil is not entirely true.

  2. avatar
    Bob Weber January 21, 2012 at 2:49 pm #

    I think you meant to write “The Globe consulted a number of Boston lawyers and government officials seeking to answer the question of McCLELLAN’S (not Romney’s) eligibility.

    I too am skeptical that Saxony granted citizenship by ius soli, as most German states used ius sanguinis.

  3. avatar
    Paul Pieniezny January 21, 2012 at 6:44 pm #

    Bob Weber:
    I think you meant to write “The Globe consulted a number of Boston lawyers and government officials seeking to answer the question ofMcCLELLAN’S (not Romney’s) eligibility.

    I too am skeptical that Saxony granted citizenship by ius soli, as most German states used ius sanguinis.

    It is rather strange. If this article were from 2003, the German context would be correct, even up to the way of losing German citizenship, but it is from 1903. I do not want to encourage the birfers, but you’d almost think someone used the Tardis again.

    There could be a simple explanation. When Saxony, Bavaria and others joined the German Reich under Prussia, a problem may have arrisen over some Kingdoms granting jus soli citizenship. This may have been solved by demanding that everyone born in these new areas, but not as of 1871 living there, should confirm their wish to have German citizenship by the age of 21. Which for men might have meant coming to Germany for conscription. I was unable to find whether the German Reich had military conscription, though I did find that the German army that defeated France in 1871 was largely a conscript army (they still beat the French professionals, though).

    Perhaps McClellan only had a chance to register as German, and was not a natural born German. Hm, shades of Huguenots. What would the Globe have written if it had known Taft and Teddy Roosevelt were potential Frenchmen?

    The article is nevertheless very interesting, as it tells us how well-informed lawyers though about the term “natural born citizen” in 1903.

    The only problem I am having with it, apart from the Saxony riddle is near the end, where they claim McClellan’s father was not under German protection when in Germany. That is incorrect: though he may have been under US “protection” (I leave that to the real lawyers), he was (also) under German jurisdiction and German protection. With jurisdiction comes protection, and vice versa. It could be a pun, of course, with the journalist implying that his readers know that Germany did not exist before 1871, so McClellan Sr was really under Saxon protection and jurisdiction.

    Meaning readers of USA newspapers in 1903 were definitely not treated as ignoramuses. Or ignorami.

    (By the way, Doc, thanks for the correction on the other thread)

  4. avatar
    Dr. Conspiracy January 21, 2012 at 10:47 pm #

    Oopsies!

    Bob Weber: I think you meant to write “The Globe consulted a number of Boston lawyers and government officials seeking to answer the question of McCLELLAN’S (not Romney’s) eligibility.

  5. avatar
    Paul Pieniezny January 22, 2012 at 12:59 pm #

    Paul Pieniezny: It is rather strange. If this article were from 2003, the German context would be correct, even up to the way of losing German citizenship, but it is from 1903.

    Apart from the fact of course that to get German citizenship by jus soli now, your parents need to have lived in Germany for eight years and the McClellans did not.

  6. avatar
    Jamese777 January 22, 2012 at 1:58 pm #

    A “stinging” rebuttal to DocC’s article by that great constitutional scholar, Mario Apuzzo is now posted at freerepublic.com
    http://www.freerepublic.com/focus/f-bloggers/2836079/posts

    Mr. Apuzzo accuses Doc. C of race-baiting..

  7. avatar
    Paul Pieniezny January 23, 2012 at 4:47 am #

    Jamese777:
    A “stinging” rebuttal to DocC’s article by that great constitutional scholar, Mario Apuzzo is now posted at freerepublic.com
    http://www.freerepublic.com/focus/f-bloggers/2836079/posts

    Mr. Apuzzo accuses Doc. C of race-baiting..

    And that is by the guy who when he was here distinguished between constitutional natural born citizens (based on the Dutch law of New Amsterdam, of course), citizens by statute, 14th amendment citizens and Wong Kim Ark citizens.

    The comments are again freepingly irrelevant. No one really talks about the 1903 article. Someone echos the Puzz by claiming the 14th amendment is a statute, so Obama cannot be NBC.

    Of course Doc was not race baiting. I did not evn notice the guy was white. We all knew it was about the father of Romney, and Doc even made a Freudian slip in the article.