This is my third and last post responding to Saul Cornell's essay The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism (2016 Wis. L. Rev. Forward 92). For part 1, see here, for part 2, see here.
In this post, I'll discuss how Professor Cornell's criticism relates to my reading of the natural born citizen clause (set forth here). Cornell principally argues that the 1790 Act did not give natural born status to people born abroad with U.S. citizen mothers and non-citizen fathers; he sharply criticizes an essay by Neal Katyal and Paul Clement taking the opposite view of the Act. In my prior posts I argued that his criticisms are misplaced, or at least are not as powerful as he thinks they are.
My view of the natural born citizen clause, however, does not depend on Katyal and Clement being right about the Act. (Cornell says the Act is "a cornerstone" of my view, but it's not). My view (explained in the article linked above) is that the clause requires some connection to the U.S. at birth but conveys to Congress power to decide what sort of connection is sufficient. That view is principally based on English law and practice, in which parliament changed the definition of "natural born" status multiple times, in multiple directions, over the century prior to the Convention; the framers were presumably familiar with this practice because it is described in part by Blackstone. Further, in my view, the 1790 Act supports this reading because the First Congress, in enacting the Act, apparently thought it had power to come up with its own definition of "natural born."
First, the 1790 Act defines "natural born" differently from English common law. Some commentators (though I think not Professor Cornell) contend that the Constitution adopted the common law definition. But the common law definition recognized natural born status only for people born in sovereign territory (with minor irrelevant exceptions). The 1790 Act clearly grants natural born status to a large number of people born outside U.S. sovereign territory, even if one does not accept Katyal and Clement's reading: at minimum, it gives that status to people born abroad with two U.S. citizen parents.
Second, the 1790 Act does not simply enact the English statutory definition of natural born that was in effect when the Constitution was adopted. The principal English naturalization act in place in 1787-89, the Act of 1731 (4 Geo. II, ch. 21), gave natural born status to anyone whose father was an English subject. As discussed, the 1790 Act gave that status to "children of citizens" — which either means that both parents must be citizens (narrower than the 1731 Act) or that either parent may be a citizen (broader than the 1731 Act). In either event, the First Congress evidently thought it could use its own definition of natural born and did not think it was constitutionally bound to the English statutory definition. The 1790 Act also added the proviso that in order to gain natural born citizenship in this way, a person's father must have at some point been a resident of the U.S. There is no parallel requirement for natural born status in any of the English statutes; this is simply an invention of the First Congress — again showing that the First Congress thought it had power to set out its own definition.
Thus, whether or not one accepts the Katyal/Clement reading (that either a U.S. mother or a U.S. father is sufficient), the 1790 Act supports the view that Congress thought it had power to vary the definition of natural born. As a result, the main point of Professor Cornell's essay, even if correct, does not refute my reading of the natural born citizen clause.
Cornell makes two other points that bear on my article. First, he says (without further elaboration):
The most obvious problem with [my claim] is that it equates Parliament's power in this area, which was absolute under the English Constitution, with Congressional power under the American Constitution, which was far more limited in its scope.
I agree that one must be cautious equating Congress' power with Parliament's power, and I discuss this objection at some length in my article. Although I agree it's a fair criticism, I don't see any other satisfactory original meaning of "natural born." The framers used a legal phrase that they knew (from Blackstone) had no fixed definition in English law, but rather was subject to parliamentary definition. To me, that indicates a decision to leave the matter in part to Congress. Saying that Congress' power "in this area" was "far more limited in scope" just asserts a conclusion that's hard to fit with the text and its historical background.
Professor Cornell also invokes St. George Tucker's 1803 treatise. (As an aside: Cornell criticizes originalists for not looking at "actual readers" such as Tucker nor taking into account their biases; this is an odd criticism, for originalists routinely look at what founding-era commentators including Tucker said about constitutional provisions — this is a centerpiece of most originalist assessments — and if they do it right they will take into account biases just as Cornell says).
Cornell says that Tucker did not think "Congress could alter the scope of the natural born citizen clause." His assessment of Tucker's commentary is:
Tucker stated unambiguously that "[p]ersons naturalized according to [the 1790 and 1795 Naturalization Acts], are entitled to all the rights of natural born citizens" except for certain express limits on their ability to hold federal offices. As far as the Presidency was concerned. Tucker was emphatic: "they are forever incapable of being chosen to the office of President of the United States."
However, this passage is ambiguous. It's not clear whether Tucker was referring to all people granted citizenship under the 1790 Act (including those declared citizens at birth), or whether he was referring only to people who became citizens as adults through the naturalization process prescribed in the Acts. If the former, he was really saying that the 1790 Act was unconstitutional, because the Act purported to give full rights of natural born citizens to those it declared to be citizens at birth. But Tucker didn't say that the 1790 Act was unconstitutional; he said that the Act did not convey presidential eligibility on the people he was discussing. That makes sense only if one reads Tucker's comments as directed only at people naturalized after birth. (I discuss this quote in my article and reach this conclusion).
In sum, Professor Cornell's essay does not materially undermine my article, regardless of whether one thinks it is an effective criticism of Katyal and Clement. In any event, though, it is a challenging and thought-provoking essay, and I'm grateful for the opportunity to further refine my thinking on the subject.
Posted at 6:51 AM