Franck, Matthew J
mfranck at RADFORD.EDU
Sat Feb 16 15:00:00 PST 2008
1. With all due respect to the Supreme Court precedents that I'm sure
Edward Hartnett has correct, to say that "citizenship obtained at birth
abroad by a child of American citizens is a form of citizenship by
naturalization" strikes me as just . . . nuts. If it is true that
"natural born" and "naturalized" are mutually exclusive, then it is
equally obvious to me that "citizenship obtained by the circumstances of
one's birth" and "citizenship obtained by naturalization" are mutually
exclusive. It is certainly not obvious that "natural born" requires
birth in a certain location. In order not to impute absurdities to the
Constitution, I would hold that the most rational reading of Article II
is that any child born to American parents living abroad is eligible for
the presidency. The requirement of fourteen years residence in the
U.S., also in Article II, supposes that at a minimum, a 35-year-old
citizen has resided in the country continuously since reaching his
majority at 21. And that takes care of the "watch out for damn
furriners" principle of the "natural born citizen" clause.
2. I am glad to learn that since 1795 the naturalization acts have
omitted the phrase "natural born" when referring to the citizenship of
children born abroad to American parents. I don't know what to make of
it without examining the texts of those acts. It may be that the same
intent evident on the face of the 1790 act is preserved in other
language. Or not. But I still think the 1790 Congress had the
constitutional principle right.
3. The language Alex Aleinikoff quotes regarding the Canal Zone seems
to clinch it for McCain, doesn't it?
4. The clause of the 1790 act that reads, "the right of citizenship
shall not descend to persons whose fathers have never been resident in
the United States," probably reflects a judgment of the first Congress
that natural born citizenship is patrilineal, and never matrilineal.
Fathers who have never been resident in the U.S. would be either a)
aliens no matter how you slice it, or b) themselves foreign-born
children of U.S. parents, but children who have never "come home" and
have thus effectively expatriated themselves. If a child can only be a
citizen of one country, Congress seems to be saying, let it be the
father's country, not the mother's. Not a decision we might make, but
not a crazy one-and yes, perfectly "sensible" as a gloss on eligibility
under Article II.
Matthew J. Franck
Professor and Chairman
Department of Political Science
P.O. Box 6945
Radford, VA 24142-6945
e-mail mfranck at radford.edu <mailto:mfranck at radford.edu>
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