On the other hand, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were “natural born Citizens.” The Naturalization Act of 1790 provided that citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .”
The actions and understandings of the First Congress are persuasive because so many of the Framers of the Constitution were also members of the First Congress. That is particularly true in this instance, eight of the eleven members of the committee that proposed the natural born eligibility requirement to the Constitutional Convention served in the First Congress and none of them objected to a definition of “natural born Citizen” that included persons born abroad to citizen parents.
The actions and understandings of the First Congress are persuasive because so many of the Framers of the Constitution were also members of the First Congress. That is particularly true in this instance, eight of the eleven members of the committee that proposed the natural born eligibility requirement to the Constitutional Convention served in the First Congress and none of them objected to a definition of “natural born Citizen” that included persons born abroad to citizen parents.
This paper goes into great depth and detail with all the footnotes in the world. It includes research into the contemporaneous notes of the First and Fourth Congress of the United States and includes the passage below.
You have to download it from SSRN Social Science Research Network.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2444766
C. The Import of Early Naturalization StatutesArticle I of the Constitution gives Congress the power “[t]o establish an uniform Rule of Naturalization,”103 which Congress first exercised in 1790. Included in the first Act To Establish an Uniform Rule of Naturalization was the following language:
[T]he 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: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .104The very existence of this provision demonstrates that the early American notion of “natural born citizen” adopted the English common law only and did not include the eighteenth-century statutes. If it had been otherwise, there would have been no need for the 1790 statute because the children covered would have been natural born under then-current English law. As one nineteenth-century senator stated: “[T]he founders of this Government made no provisionof course they made nonefor the naturalization of natural born citizens.”105 Moreover, the legislative history suggests that the first Congress intended to effectuate a change in the law, not merely to declare the status quo.106 On February 3, 1790, Congress began debating a draft bill that provided for naturalization.107 The legislature acknowledged the common law principle that “[a]n alien has no right to hold lands in any country [but his own].”108 However, there was no real opposition to “let[ting] foreigners, on easy terms, be admitted to hold lands” in America.109 One of Congress’ greatest concerns was the prospect of all those immigrants pushing their way into the budding nation’s new government. For example, one congressman, summing up the issue, stated:A foreigner who comes here is not desirous of interfering immediately with our politics; nor is it proper that he should. His emigration is governed by a different principle; he is desirous of obtaining and holding property. I should have no objection to his doing this, from the first moment he sets his foot on shore in America; but it appears to me, that we ought to be cautious how we admit emigrants to the other privileges of citizenship . . . . [T]he admission of a great number of foreigners to all the places of Government, may tincture the system with the dregs of their former habits, and corrupt what we believe the most pure of all human institutions.110In sum, the debate focused on how to balance properly an immigrant’s need to purchase or inherit land quickly and Congress’ concerns about granting other aspects of citizenship. Another congressman, referring to a statute that allowed English children to inherit from alien parents,111 suggested that “the . . . children of American parents born abroad ought to be provided for, as was done [by Parliament] in the case of English parents.”112 In essence, he called for a clause that would permit American parents to bequeath property to their alien children. Thus, he understood “children of American parents born abroad” to be aliens and ineligible to inherit property. At the close of the debate, the House sent the bill back to a subcommittee to consider how best to address the issues raised.113 Just before the end of the discussion, a member of the subcommittee that originally presented the draft bill announced that “he had another clause ready to present, providing for the children of American citizens born out of the United States.”114 This comment further demonstrates the recognition of an ongoing need to provide for these children due to their alien status. Because the 1790 Act stated that alien children of American parents would “be considered as natural born citizens,” the question remains as to the scope of the change Congress intended to effect. Did Congress mean to amend the requirements of the Clause statutorily? As aforementioned, the Framers constitutionalized the common law concept of natural born citizen. Under the common law, “[t]he first and most obvious division of the people is into aliens and natural-born [citizens].”115 In other words, everyone is either an alien or a natural born citizen based on his or her place of birth; that status does not change. Article I grants Congress the power to naturalize, that is, “remove the disabilities of alienage.”116 However, Congress does not possess the alchemical power to convert one’s status from alien to natural born citizen.117 If truly Congress’ intent, such a result would expand the requirements of Article II without a constitutional amendment. Moreover, Parliament’s expansion of the definition of “natural born subject” in the eighteenth century sets no precedent with respect to the American provision. In comparison to the American Constitution, the English Constitution is unwritten.118 By the late seventeenth century, England’s Constitution consisted of whatever Parliament declared as law; Parliament had “sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws.”119 As such, it could “change and create afresh even the constitution of the kingdom and of parliaments themselves.”120 Parliament certainly had the power to extend natural born status to those who otherwise would have been aliens. The relationship between Congress and the American Constitution is quite different. According to the Supreme Court in Marbury v. Madison,121 to allow Congress the same latitude as Parliamentwould subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbid[d]en, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits.122Therefore, Congress cannot alter who is eligible to run for President by statute. Such a dramatic change requires a constitutional amendment.123Unsurprisingly, no evidence suggests Congress intended to expand the class of persons who could run for President. Moreover, early commentators agreed that the use of “natural born” in the first naturalization act did not amend Article II. For example, St. George Tuckera professor of law at the College of William and Mary124published his edition of Blackstone’s Commentaries in 1803, wherein he provided his own notes concerning the differences between English and American law.125 With respect to naturalization and citizenship, he cited all of the American naturalization statutes enacted to that date, including the 1790 Act.126 He then concluded that “[p]ersons [] naturalized according to these acts, are entitled to all the rights of natural-born citizens, except . . . they are forever incapable of being chosen to the office of president of the United States.”127 In any event, Congress swiftly repealed the 1790 statute in 1795.128 This time, debate in the House focused on several issues, including whether aliens seeking naturalization should be made to renounce (1) foreign hereditary titles and (2) any claim to persons then held in slavery.129 The House voted “yea” on the first question and “nay” on the second.130 On January 2, 1795, the bill was recommitted to a select committee of three individuals, one of whom was James Madison.131 Earlier, on December 29, 1794, Madison had expressed the opinion that Congress had no naturalization authority over American citizens: “It was only granted to them to admit aliens.”132 The following Monday, January 5, 1795, “Mr. Madison . . . reported a new bill of Naturalization, containing the amendments recommitted, and also whatever was necessary from the Old Law, so that the latter should be entirely superceded.”133 Madison salvaged the “Old Law” provision that granted naturalization rights to children of American citizens born abroad.134 Interestingly, the phrase “natural born” was deleted without any recorded debate on the issue.135 The new statute provided in pertinent part that “the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons, whose fathers have never been resident in the United States.”136 The law established that the alien child was only naturalized, not declared a natural born citizen.137