The Original Meaning Of ‘Natural Born’
University of San Diego School of Law
January 7, 2016
Article II, Section 1 of the U.S. Constitution provides that no one but a “natural born Citizen” is eligible to be President of the United States. Modern conventional wisdom generally holds that the phrase “natural born Citizen” includes anyone made a U.S. citizen at birth by U.S. statutes or the Constitution. But that conventional wisdom is, on its face, open to doubt. If anyone born a U.S. citizen is eligible, the word “natural” in the eligibility clause is superfluous. Further, in general in eighteenth-century legal language, natural meant the opposite of “provided by statute” (hence “natural law” and “natural rights”). And plausible arguments can be made for a narrow meaning of “natural born” on the basis of either traditional English common law or eighteenth-century continental public law. To this point, modern scholarship has provided no comprehensive response to these objections.
Nonetheless, as matter of the Constitution’s original meaning, the conventional wisdom is correct. This article defends a broad view of the original meaning of the eligibility clause on the basis of eighteenth-century English parliamentary practice. The key to understanding the eligibility clause is Congress’ power over naturalization, which in turn is best understood by examining parliament’s naturalization power. By the mid-eighteenth-century, Parliament had power to define by statute who would be recognized as a “natural born subject” – a power that, along with others, was called naturalization. In a succession of Acts, Parliament extended this designation (which originally only applied to those born in England) to various categories of people born outside the country. In adopting the phrase “natural born” from English law, the American framers likely understood that they were using a phrase without a fixed definition and subject to legislative alteration through the naturalization power. That conclusion in turn provides sound support for the modern view that Congress can create categories of “natural born” citizens by statute.
The Original Meaning Of ‘Natural Born’ – Introduction
Modern conventional wisdom generally holds that the phrase “natural born Citizen” in the presidential eligibility clause includes anyone made a U.S. citizen at birth by U.S. statutes or the Constitution. A U.S. statute makes most people born outside the United States to at least one U.S. citizen parent citizens at birth;3 thus people in this category – along with those born within the United States and thus citizens under the first sentence of the Fourteenth Amendment – are thought to be eligible. According to a recent essay by two prominent commentators, “the relevant materials clearly indicate … that the original meaning of the phrase ‘natural born Citizen’ includes persons born abroad who are citizens from birth based on the citizenship of a parent.”
But that conventional wisdom rests on surprisingly thin scholarly foundations and faces daunting textual and historical challenges. If anyone born a U.S. citizen is eligible to the presidency, the word “natural” in the eligibility clause is superfluous. To give it meaning, there should be some “born” citizens who are not “natural born.” Further, in general in eighteenth-century legal language, natural meant the opposite of “provided by statute.” Natural law was the opposite of positive law; natural rights were rights that predated codification. The most obvious meaning of “natural born Citizen” thus is not a person who claims citizenship from a statute, but rather a person whose citizenship comes from the natural state of things.
Moreover, despite the confident ring of the conventional wisdom, there are essential no sustained scholarly defenses of it. Its leading recent affirmation is only four pages long. To the contrary, the few scholarly articles to address the clause have found it mysterious and ambiguous.
The lack of firm support for the conventional view has potentially serious consequences, even to the point of constitutional crisis. In an era of globalization, more Americans are likely to have children overseas who aspire to the nation’s highest office. One presidential nominee in 2008 was born in the Canal Zone7 while the other was rumored (falsely) to have been born in Kenya. Texas Senator Ted Cruz, currently seeking the Republican Party nomination for President, was born in Canada to a U.S. citizen mother and non-citizen father.8 It is not unlikely that in our era a person will be elected who is arguably not eligible. A thorough investigation of the eligibility clause’s original meaning seems not merely an intriguing academic exercise but a practical necessity.
That is particularly true because at least two strong challenges to the conventional wisdom have emerged in popular literature, arguing for substantially narrower interpretations. One of these contends – consistent with the ordinary meaning of “natural” – that only persons born within the United States are “natural” citizens; others are mere statutory citizens, and thus ineligible to the presidency. A second contends that the framers’ idea of “natural born” citizenship arose from the work of the great Swiss writer Emer de Vattel, whose treatise on the law of nations was enormously influential at the founding. Vattel adopted the common European view, derived from Roman law, of citizenship by inheritance rather than birth: “natural” citizenship was passed from father to child, regardless of the child’s place of birth. In this view, then, even some people born in the United States would not be eligible to be President, while some born overseas (but not all those made citizens by modern law) would be.
This article concludes that the conventional view is probably correct as a matter of the Constitution’s original meaning, but that the argument is complicated and not entirely free from doubt. As suggested above, the text seems to point in the opposite direction, toward an idea of “natural” citizenship arising from some connection to the nation apart from mere statutory status. The drafting and ratifying history is unhelpful, as the clause was rarely discussed, and only in general terms. Similarly, post-ratification discussions are inconclusive, or appear to point in different directions. On the basis of the text and the most frequently consulted founding-era sources, the phrase appears to refer to a “natural” relationship to the nation that was incompletely articulated, or perhaps incompletely understood.
One might be tempted to stop there and declare the clause fatally ambiguous. This article argues, however, that meaning can be found in pre-constitutional sources, chiefly in the idea of “natural born subjects” in English law. In brief, traditional English law reflected an idea of “natural” birth within the allegiance of the king, based only on birth within the king’s territory (with minor exceptions). These people were called “natural born subjects.” Since the late seventeenth century, however, parliament had extended “natural born subject” status to certain persons born abroad to English parents. Crucially, parliament did not merely give these persons the rights of natural born subjects; it declared them to be natural born subjects. As a result, by the late eighteenth century, in English law the phrase “natural born” – contrary to its traditional meaning – had come to include those given subject status at birth by statute.
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