I offer the serious study by Gordon in the Maryland Law Review. Since I am chastising Trump supporters for their lack of intellectual honesty, I must point out that this Law Review article was written before the latest Supreme Court decision touching on the matter came out with dicta to the effect that a natural born citizen does not qualify merely by virtue of birth citizenship. The author of this article anticipates that dicta with some logic.
It is a long article so I reproduce here only the conclusions be found at the end. I recommend the article to anyone who is not content with bland assurances from one side or the other but who wants a fundamental peer-reviewed study of the issue.
SUMMARY AND CONCLUSIONS
My study of this 180 year enigma leads me to the following conclusions.
1. The reference to "natural-born" in the presidential qualifica- tion clause must be considered in the light of the English usage, well known to the Framers of the Constitution. The English common law, particularly as it had been declared or modified by statute, accorded full status as natural-born subjects to persons born abroad to British subjects.
2. Although the evidence of intent is slender, it seems likely that the natural-born qualification was intended only to exclude those who were not born American citizens, but acquired citizenship by naturalization. The Framers were well aware of the need to assure full citizenship rights to the children born to American citizens in foreign countries. Their English forebears had made certain that the rights of such children were protected, and it is hardly likely that the Framers intended to deal less generously with their own children. The evidence, although not overwhelming, unquestionably points in the direction of such generosity.
3. This gloss of prior history and usage is not dulled, I believe, by the Naturalization Act of 1790 or by the fourteenth amendment. The 1790 act, enacted soon after the Constitutional Convention, recog- nized such persons as natural-born citizens. The fourteenth amendment, adopted primarily to confirm the full citizenship denied to Negroes by the Dred Scott decision, did not refer to "natural-born" citizens, did not purport to limit or define the presidential qualification clause of publicized election contest involving an election for governor was In re Andersen, 264 Minn. 257, 119 N.W.2d 1 (1962). 237. Comprehensive recent discussions of the political controversy doctrine will be found in Baker v. Carr, 369 U.S. 186, 210-37, 267-318 (1962) ; Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427-37 (1964) (act of state doctrine). 238. See the observations of Professor Corwin and Fincher quoted in text accom- panying notes 171 & 173 supra; F. MncHEM, PUBLIC OFFICES AND OFFICERs 312-14 (1890) (remedy discretionary, and court may withhold relief if disastrous consequences would result. However, the Supreme Court's direct confrontation with the President in the Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).
239. See Means, supra note 27, at 30, 113 CONG. RIc. at H5779.
240. Even if an elected official is disqualified by the courts, it does not follow that the office can be claimed by his defeated opponent. See G. MCCRARY, ELtCrIONS 248 (4th ed. 1897).
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MARYLAND LAW REVIEW
the Constitution, and did not, in my estimation, bar a construction of that clause to include children born abroad to American parents. 4. Nor is such a construction foreclosed by questionable dicta in United States v. Wong Kim Ark and other Supreme Court decisions. These dicta are not addressed to the presidential qualification clause and cannot control its construction.
Having endorsed these conclusions, I must concede that the picture is clouded by elements of doubt. These doubts will unquestionably persist until they are eliminated by a constitutional amendment, a definitive judicial decision, or the election and accession of a President who was "natural-born" outside the United States.241 The withdrawal of Governor Romney has ended the possibility that clarification would emerge as a result of his candidacy. Perhaps such clarification will develop from some future candidacy of another citizen in the same situation. On the other hand, it may eventually be necessary to amend the Constitution in order to remove the ambiguity
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2068&context=mlr
