[Ed.: This guest post is from Thomas H. Lee, the Leitner Family Professor of International Law and Director of Graduate and International Studies at Fordham University Law School. It responds to some earlier posts on this blog.]
I want to begin by saying Michael Ramsey’s draft paper is the best thing out there on the question of the original meaning of “natural born citizen” in Article II. That’s not surprising because he is one of the best, most honest originalists/textualists of our generation, as I can attest from co-authoring a Presidential Power Stories chapter with him on the Prize Cases. I am going to be posting my own complete paper on SSRN next week, which covers much of the same evidence he does but interprets it somewhat differently; the only important additional piece of evidence I discuss is a 1784 Maryland statute mentioned in my LA Times op/ed that made Lafayette a “natural born citizen.” I’d like to describe here our agreements and disagreements. (1) Most importantly, Michael and I agree that being a natural born citizen (NBC) is not synonymous with “born in the USA.” (2) We also agree that prior English practice and the law of nations is very important to understanding what NBC in Article II meant in 1788 (that’s when New Hampshire, the ninth state, ratified). (3) Finally, we both agree that the 1790 Naturalization statute does not say children born abroad to a US citizen mother are natural born citizens, and in fact the best interpretation of the 1790 statute is that it applies only to the children of American fathers or of American fathers and mothers.
Where we disagree. (1) In terms of method, Michael is more textualist than I am—I’m very sympathetic to originalism (unlike Larry Tribe) but tend to focus on the purpose behind enactments and provisions, general legal principles, intellectual history, and broader socioeconomic and political history. This means that he places more importance on statutes using the same words or “natural born subjects” and contemporaneous dictionaries; I focus more on the purposes of constitutional provisions and enactments. When one considers purposes, the NBC Clause was intended to ensure that the President and military Commander in Chief was loyal to the USA and did not possess conflicting allegiances to other countries (e.g., Lafayette to a republican France). Naturalization statutes, including the 1790 Naturalization statute that uses the words “natural born citizen” and their English antecedents do not address presidential eligibility, but rather who has to follow additional steps to become citizens.
(2) It’s true, as Michael says, that both Parliament and Congress have tweaked that definition over time. He concludes, not unreasonably, from this evidence that Congress has broad discretion under the “Naturalization Clause” to define who is a “natural born citizen” eligible to be President. Again, naturalization statutes are irrelevant to constitutional eligibility to be President. And there is nothing in the legislative history of the Article I Naturalization Clause to suggest that it was meant to extend to Congress a power to shape the presidential eligibility standards pertaining to citizenship in Article II. Consider, as well, what such a congressional power means: Congress has broad discretion to change standards of presidential eligibility on the ground of citizenship set forth in Article II. What is the limiting principle? Some connection to the United States is what Michael proposes. In my opinion that is a slippery standard (Lafayette counted, Congress could make Arnold Schwarzenegger eligible by statute—a constitutional amendment would be unncessary) and can’t be what the constitutional words, “natural born citizen” meant. Isn’t it more logical (and possibly textualist) to construe the word “natural” in the constitutional provision as referring to the two major principles of natural law regarding citizenship/subjectship then in play—jus soli and jus sanguinis? As I describe in another paper about the civil law’s influence on early American constitutionalism, the early Americans were very much sympathetic to the civil law, more than England.
So what do I think “natural born Citizen” in Article II means? My own research, which I will describe in my paper (stay tuned—on SSRN next week), indicates at the very least it included children of public officials the government sent abroad. It would have been perverse to punish those who went abroad to serve the sovereign, by disqualifying their children from the highest political office. In my paper, I call these public citizens or subjects. (This exception arguably includes women who might serve, based on a seventeenth century English statute that mentioned mothers, presumably ladies-in-waiting serving Mary when the court was in the Netherlands).
As to private citizens or subjects who have children abroad, the picture is murkier. Obviously these people did not go abroad to serve the sovereign, but rather for voluntary reasons, likely of economic nature. And so their offspring cannot be presumed to have the same warrants of parental loyalty. But the mid-late eighteenth century English statutes, for mercantilist reasons, indicate that children of English men to the second generation were deemed “natural born subjects.” The background presumption was that the DNA of political loyalty depended on the allegiance of the father; the mother was wholly irrelevant.
In summary, by the mid-late eighteenth century, the rule that public subjects' children born abroad were natural born subjects had penetrated the common law, even according to Blackstone, and was a natural principle of the law of nations that did not require a parliamentary statute to activate. For private subjects in England, statutes may still have been required to make their children natural born subjects. So there are two possible conclusions here from an originalist perspective: (1) only the children of public citizens/subjects born abroad are natural born citizens eligible to President or high political office in UK (ambassadors, ministers, soldiers, courtiers (including ladies-in-waiting), so John McCain was good to go on this basis); (2) the children of private citizens/subjects born abroad to citizen/subject fathers or paternal grandfathers are “natural born citizens/subjects.” Both are consistent with the larger point that the rule of blood—jus sanguinis—was part of the “natural” principles referred to in the Natural Born Citizen Clause. Why did I pick the broader definition in my LA Times op/ed, to include eligibility for children born abroad to private citizen fathers? I think it seems fair to me to say that if there is reasonable doubt, then go with the provision that gives broader access, the more democratic one. But this is a closer call from an orignialist perspective. But it’s a different way to think about it than from a textualist approach as Michael Ramsey has taken.
MICHAEL RAMSEY adds: I appreciate the kind words, and I think this post is an excellent contribution in clarifying the debate. To be clear, I don't think I actually agree with the third point of "agreement" mentioned in the opening paragraph (I think the 1790 statute is likely ambiguous on this point), but I also don't think it affects the wider debate much.
Posted at 6:10 AM