Presidential eligibility of George Romney
by Pinckney G. McElwee of D.C. Bar
June 1967, The Congressional Record 6-14-1967

The Act of March 26, 1790 (1 Stat 103) provides in pp 104: “And the children of citizens of the United States that may be born beyond the seas, or out of the limits of the United States shall be considered as natural-born citizens.”

In Osborn v. Bank, 22 US (9 Wheat) 738, l.c. 827, Chief Justice Marshall said:

A naturalized citizen is indeed made a citizen under an Act of Congress, but the Act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as regards the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstance under which a native might sue. He is distinguishable in nothing from a native citizen, except so far as the Constitution makes the distinction. The law makes none.

Thus the Act of March 26, 1790 would be unconstitutional if it attempted to enlarge the rights of a naturalized citizen to be equal to those of natural-born citizens under the Constitution.

Although it is not within the power of Congress to change or amend the Constitution by means of definitions of languages used in the Constitution so as to mean something different than intended by the framers (amendments being governed by Article V) an argument might be advanced to the effect that the use of identical language by Congress substantially contemporaneously might be considered in later years by a court to reflect the same meaning of the same words by the framers of the Constitution; and under this argument to attach importance to the Act of Congress of March 26, 1790 (1 Stat 103).

This argument fades away when it is found that this act used the term “natural born” through inadvertence which resulted from the use of the English Naturalization Act (13 Geo. III, Cap 21 (1773) as a pattern when it was deemed necessary (as stated by Van Dyne) to enact a similar law in the United States to extend citizenship to foreign-born children of American parents. In the discussion on the floor of the House of Representatives in respect to the proposed naturalization bill of a committee composed of Thomas Hartley of Pennsylvania, Thomas Tudor Tucker of South Carolina and Andrew Moore of Virginia, Mr. Edamus Burke of South Carolina stated, “The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents in the 12th year of William III.” (See pp 1121, Vol 1 (Feb. 4, 1790) of Annals of Congress.) The proposed bill was then recommitted to the Committee of Hartley, Tucker and Moore, and a new bill containing the provision in respect to foreign-born children of American parentage was included, using the Anglican phrase “shall be considered as natural born citizens.” Manifestly, Mr. Burke had given the wrong reference to the Act of Parliament of the 12th year of William III which was an inheritance law. But, it was a naturalization bill and the reference to the English acts shows the origin of the inadvertent error in using the term natural-born citizen instead of plain “citizen” came from copying the English Naturalization Act.

Mr. James Madison, who had been a member of the Constitutional Convention and had participated in the drafting of the terms of eligibility for the President, was a member of the Committee of the House, together with Samuel Dexter of Massachusetts and Thomas A. Carnes of Georgia when the matter of the uniform naturalization act was considered in 1795. Here the false inference which such language might suggest with regard to the President was noted, and the Committee sponsored a new naturalization bill which deleted the term “natural-born” from the Act of 1795. (1 Stat 414) The same error was never repeated in any subsequent naturalization act.

The Act of 1795 provides:

The children of citizens born outside of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.

In 1802, when Congress repealed entirely the law of 1790, it enacted that “the children of persons who now are, or have been citizens of the United States, shall, although born outside the limits and jurisdiction of the United States, be considered as citizens of the United States” (2 stat 153). (R.S. 1993) This was followed by the Act of 1855 (10 Stat 604) which repealed the Act of 1802.

In United States v. Perkins, 17 F S 117, the syllabus reads:

Child born in England of mother who had been born in United States, and had married Englishman in England, held not a ‘natural born citizen,’ within the provisions of Federal Constitution, whether child became citizen at birth by reason of mother’s citizenship or by her subsequent repatriation (Cable Act. 8 U.S.C.A. Sections 9, 10, 367-370; 8 U.S.C.A. sections 6 and note, 7, 8, 399 c (a); Rev. St section 1993; Convention with Great Britain May 13, 1870, art. 1, 16 Stat. 775).

And the text of the opinion on page 179 reads:

But I think it is immaterial, for the purpose of the instant suit, whether petitioner became an American citizen at his birth by reason of his mother’s citizenship or later by means of the repatriation of his mother. I do not think the authorities sustain his claim that he is a natural-born citizen within the meaning of the provisions of the Constitution, either of section 1, clause 4, or article 2, that ‘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,’ or of the Fourteenth Amendment, that ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

* * *

I find no proper legal or historical basis on which to conclude that a person born outside of the United States could ever be eligible to occupy the Office of the President of the United States. In other words, in my opinion, Mr. George Romney of Michigan is ineligible to become President of the United States because he was born in Mexico and is, therefore, not a natural-born citizen as required by the United States Constitution.

...Pinckney G. McElwee