Originalism And The Natural Born Citizen Clause

Lawrence B. Solum

Georgetown University Law Center

April 18, 2010

Illinois Public Law Research Paper No. 08-17

Abstract:

The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a “natural born citizen” was likely a term of art, derived from the idea of a “natural born subject” in English law – a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

What was the original public meaning of the enigmatic phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of settled meaning: some cases of inclusion and exclusion seem indisputable. As a matter of inclusion, anyone born on American soil with an American parent is clearly a “natural born citizen.” As a matter of exclusion, anyone whose citizenship is acquired after birth as a result of “naturalization” is clearly not a “natural born citizen.” But these clear cases of inclusion and exclusion do not exhaust the possibilities. John McCain’s citizenship was conferred by statute – perhaps before, but perhaps after his birth. That leaves John McCain in a twilight zone – neither clearly naturalized nor natural born.

This Essay explores the contribution of originalism as a theory of constitutional interpretation to the controversy over the meaning of the natural born citizenship clause. Part II of the Essay explains the relevance of originalist constitutional theory to the controversy with special reference to the New Originalism – the view of constitutional meaning that emphasizes public meaning of the constitutional text at the time each provision was framed and ratified. Part III argues that that the clause creates a problem for public meaning originalism – the phrase “natural born citizen” may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a “term of art,” in particular, the idea that the meaning of “natural born citizen” derives from the English concept of a “natural born subject.” Part IV considers the possibility that the original meaning of the natural born citizen clause is subject to an irreducible ambiguity. Part V concludes with reflections on the exemplary significance of the natural born citizen clause for constitutional theory.

Originalism And The Natural Born Citizen Clause – Introduction

The United States Constitution provides:

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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

What is the legal significance of what we can call “the natural born citizen clause”? There is general agreement on the core of settled meaning. As a matter of inclusion, it is beyond dispute that anyone born on American soil with an American parent is a “natural born citizen.” As a matter of exclusion, anyone whose citizenship is acquired after birth as a result of “naturalization” is not a “natural born citizen.” But agreement on these paradigm cases of inclusion and exclusion does not entail that the clause has a clear meaning. The clause becomes enigmatic once we focus on persons who are born outside the territory of the United States to parents who are American citizens. Are they “natural born citizens,” eligible for the presidency? Or do they fall into a constitutional twilight zone, neither “natural born” nor “naturalized,” but nonetheless citizens?

The meaning of the natural born citizen clause became politically salient when John McCain became the Republican nominee for President in September of 2008: McCain was born in the Panama Canal Zone to parents who were American citizens.4 Because McCain was born in 1937, there is a dispute as to whether the 1937 statute that purported to confer citizenship on children of American parents born in the Panama Canal Zone constitutes retroactive “naturalization” or whether that statute was merely a clarifying confirmation of preexisting law under which McCain was an American citizen at birth.

This Essay explores the contribution of originalism as a theory of constitutional interpretation to the controversy over the meaning of the natural born citizenship clause. Part II of the Essay explains the relevance of originalist constitutional theory to the controversy with special reference to the New Originalism-the view of constitutional meaning that emphasizes public meaning of the constitutional text at the time each provision was framed and ratified. Part III argues that that the clause creates a problem for public meaning originalism-the phrase “natural born citizen” may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a “term of art,” in particular, the idea that the meaning of “natural born citizen” derives from the English concept of a “natural born subject.” Part IV considers the possibility that the original meaning of the natural born citizen clause is subject to an irreducible ambiguity. Part V concludes with reflections on the exemplary significance of the natural born citizen clause for constitutional theory.

The Problem For Original Public Meaning Originalism

Interpretation of the phrase “natural born citizen” may pose a problem for originalist theory-and especially for what is sometimes called “the New Originalism” or “original public meaning originalism.” The question whether the phrase “natural born citizen” had a clearly understood “public meaning” depends both on linguistic facts and on the constitutional theory.

Originalism And The Natural Born Citizen Clause

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