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Archive | May, 2009

Defining Natural Born Citizen

Hollister v. Soetoro

Natural born citizen

While coming tantalizingly close, no US Court  has ever decided the definition of “natural born citizen.” The term was not explained in the debates of the Constitutional Convention, nor the state legislatures when it was ratified, nor by individual framers in their speeches, letters or papers. Where do we go for a definition–to an 18th century Swiss philosopher–to an appeal to our shared prejudices?

The US Constitution is replete with terms that it doesn’t define: citizen, impeachment, felonies, treason, bribery, bankruptcy, warrants, grand jury and attainder. These are, however, familiar terms in the common law. The Supreme Court wrote in the case of Smith v. Alabama (1888) 124 U.S. 465:

There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . 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. Continue Reading →


First black winner’s citizenship challenged

Sound familiar? It is, but I’m not talking about Barack Obama; instead this is about the first black man elected to Congress, Hiram Rhodes Revels, in 1871. Here is the story from the Wikipedia:

The election of Revels was met with opposition from Southern conservative Democrats who cited the Dred Scott Decision which was considered by many to have been a central cause of the American Civil War. They argued that no black man was a citizen before the 14th Amendment was ratified in 1868. Because election to the Senate required nine years’ prior citizenship, opponents of Revels claimed he could not be seated, having been a citizen by law for only two years. Supporters of Revels countered by stating that the Dred Scott decision applied only to those blacks who were of pure African blood. Revels was of mixed black and white ancestry, and therefore exempt, they said, and had been a citizen all his life. This argument prevailed, and on February 25, 1870, Revels, by a vote of 48 to 8, became the first black man to be seated in the United States Senate.

What I think important about this story is that the decision whether to seat Revels or not was made by the Senate, who is constitutionally tasked with determining the qualifications of its membership. It was not a court; opponents did not try to bring quo warranto lawsuits.

In the same way, the Constitution provides that the Congress (House and Senate in joint session) approve the election of a president, which they have done with President Obama.

Thanks to for this interesting historical note.