The Natural Born Citizen Clause As Originally Understood
Widener University Delaware Law School
2015
Catholic University Law Review, v. 64, no. 2 (2015)
Widener Law School Legal Studies Research Paper No. 14-21
Abstract:
Article II of the Constitution requires that the President be a “natural born Citizen.” The phrase is derived from English common law, and the Supreme Court requires examination of that law to ascertain the phrase’s definition. This piece presents the pertinent English sources, combined with statements by early American jurists. Based on a reading of these materials, the article concludes that, in the eyes of the Framers, a presidential candidate must be born within the United States. The article is important because there has been a candidate who “pushed the envelope” on this question in many elections over the last 50 years, and no article in the last century has correctly explained the common law definition. This article is timely because there is again such a candidate for president as Sen. Ted Cruz was born in Canada.
The Natural Born Citizen Clause As Originally Understood – Introduction
In July 2013, as part of a four-week summer session at the University of Delaware’s Osher Lifelong Learning Institute, I presented a series of lectures for non-lawyer senior citizens on things every American should know about the U.S. Constitution. Most of the topics were drawn from then-current headlines, such as the impact of the Fourteenth Amendment on marriage equality and the relationship between the Fifteenth Amendment and the Voting Rights Act. In addition to these traditional Constitutional Law subjects, I decided to include a topic not normally covered at the law school:
the Natural Born Citizen Clause of Article II (“the Clause”). The members of the class were old enough to remember Mexican-born George Romney’s 1968 presidential run; Canal Zone-born John McCain’s run in 2008 was recent history; and at the time, Canadian-born Ted Cruz was hinting at a run in 2016.
As I researched the Clause, it quickly became clear to me that most modern scholars had made virtually no attempt to wrestle with the text of the Constitution and their historical analyses were negligent at best. Ironically, most of these commentaries were created by authors purporting to explain the meaning of the Clause in the context of the time in which it was written. One refreshingly honest author declared:
The “natural born citizen” requirement manifests a distrust of the foreign-born that, in a nation of immigrants, can only be derided as repugnant. I both “reject” it and I “denounce” it! It’s still part of the Constitution, however, and therefore we need to try to figure out what it means. My frankly normative move would be to limit the damage by limiting the scope of “foreign-born.” There’s no plausible way to read the provision to permit [Austrian-born former California Governor Arnold] Schwarzenegger and other naturalized citizens to become President. There is a ready (if not 100% clearly the original) way to read it to permit Americans born abroad to U.S. parents to become citizens.
Unfortunately, that approach is a bit too cavalier for me. Even though I believe the U.S. Constitution has evolved over time, I still think that, in order to answer questions about its meaning, one should begin with its text and history. Thus, this Article explains how the Clause would have been understood in the early days of the Republic. Whether this historical interpretation should be disregarded to meet the changing sensibilities of modern Americans is beyond the Article’s scope.
A presidential hopeful may encounter several issues involving the meaning of “natural born citizen.” For example, does someone born to alien parents in the United States qualify? Or should children born in the incorporated territories of the United States – such as Kansas and Arizona formerly were – receive the same treatment as those born in unincorporated territories of the United States–such as the Philippines and the Canal Zone once were? However, this Article is not a comprehensive treatment of all questions presented by the Clause. It only addresses the question raised by the candidacies of Governor Romney and Senator Cruz: in the eyes of early Americans, would someone born to American parents in a foreign country be a “natural born citizen” and therefore eligible to be a U.S. President?
Because the phrase “natural born” was derived from the common law, this Article begins with an examination of pertinent English sources, which would have been known to the Framers of the Constitution. This Article then reveals early Americans’ understanding of the phrase, beginning with the drafting of the Constitution, including ratification of the Fourteenth Amendment,13 and ending with the Supreme Court’s 1898 confirmation that birth in the United States is the key to being “natural born.” This discussion necessarily includes the import of the earliest naturalization statutes. Finally, the Article reveals the weaknesses of modern commentary on the original meaning of the Clause.
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