Jim Henderson (Just Sayin) responds to Neal Katyal and Paul Clement on Ted Cruz and presidential eligibility: Shooting A Blank: Clement and Katyal Fire a Dud in the Qualification Wars. (Thanks to William Rawle for the pointer). It's a strong counterpoint, but I am not persuaded. From the core of the argument:
[Katyal and Clement's] conclusion rests on a fallacious conflation of English statute law and English common law. The significance of that conflation cannot be overstated. As noted, under English common law, only persons born within the realm were entitled to status as “Natural Born Subjects.” Hard choices faced those living with such a reality. Called to service, engaged in mercantile trade, traveling for study, many reasons provoked Natural Born Subject to remove to other lands. Living abroad – even in service to country and Crown – would risk that offspring would suffer disinheritance of title and property. So Parliament necessarily, wisely, granted to specific categories of persons born abroad status as Natural Born Subjects.
In fact, Clement and Katyal gloss over this dichotomy. English statutory law, enacted by Parliament, extended “Natural Born Subject” status to additional classes of persons not within the English common law’s sweep of the term. It is from that premise – Parliament’s expansion of the scope of “Natural Born Subject” – that Clement and Katyal illogically leap. The leap is illogical because they refer to the vaunted role of English common law in understanding our early legal history and as a source work for understanding the Constitution but then invoke English statute law to give meaning to our Constitution’s “Natural Born Citizen” provision.
The post correctly describes the relationship between English common law and English statutory law on the subject, but in my view draws the wrong conclusion from it. I agree it is essential to Katyal & Clement's argument to look at both common law and statutory law, but I don't think it's a "leap," much less an "illogical" one. We should look at both for the same reason: they are part of the Constitution's legal background. The meaning of words in the Constitution is informed by the way those words were used in the whole corpus of English law, both common law and statutory law. There is no sound basis for excluding statutory usage (where the founding generation in America was familiar with it, as was clearly the case here) as evidence of constitutional meaning. What "natural born" meant in eighteenth-century English law was a combination of common law and statutory law.
The post continues:
… [T]he decision of Congress [in the 1790 Naturalization Act, relied on by Katyal & Clement] to extend Natural Born Citizen status to persons who were not, in fact, by operation of the common law, Natural Born Citizens was not a proper exercise of the Naturalization Clause power. The essence of naturalization is to make one a citizen that is not a citizen. So the power of Congress is limited to that task, making, as it were, citizens out of whole cloth. But therein lays the rub for Clement and Katyal, while Parliament had power to grant Natural Born Subject status to persons denied that status by operation of common law, our Legislative Branch is one of limited and defined powers. For Clement and Katyal to succeed, they must identify a legitimate ground upon which Congress could expand the meaning of the Natural Born Citizen provision.
Again, I think this formulation asks exactly the right question but then gives the wrong answer. I agree that a key to the eligibility clause debate is the power of Congress. But I would define Congress' naturalization power by reference to Parliament's naturalization power. Parliament's power is the obvious antecedent of Congress' power in this situation. There is no "essence" of naturalization apart from the meaning eighteenth-century legal usage placed on that term.
There is no doubt that (a) Parliament had power to declare persons born abroad to English parents to be "natural born"; (b) this power was described as part of Parliament's power of "naturalization" (the relevant statutes were called acts to "naturalize" persons born abroad); and (c) the founding generation in America knew this. Accordingly, absent strong contrary evidence, I think it follows that Congress' naturalization power included what Parliament's naturalization power included: the power to declare a person born abroad to be "natural born" based on the allegiance of his parents.
Posted at 6:19 AM