At his substack, Paul Ingrassia argues: No, The Constitution Does Not Allow Children Born Of Non-Citizens To Become President Of The United States (specifically targeting presidential candidate Nikki Haley, who was born in South Carolina to non-citizen parents). In part he relies on my article The Original Meaning of 'Natural Born':
[T]he issue of Presidential Eligibility, as an entirely separate Constitutional consideration [from constitutional birthright citizenship], derives its principal meaning from sources other than the Fourteenth Amendment. The distinction between the favored construction of the Fourteenth Amendment by the legal establishment that finds in it grounds for natural-born citizenship, despite, critically, the Amendment’s notable omission of that phrase, and the entirely separate issue of Presidential Eligibility, is one noted by many well-reputed legal scholars, both past and present.
For instance, Michael D. Ramsey, who is a Law Professor at the University of San Diego and former law clerk for the late Justice Antonin Scalia, wrote in a University of Pennsylvania Law Review article published in 2017 that “…as to persons born in the United States, the Fourteenth Amendment appears categorically to declare them citizens at birth. The question, germane only to the [Presidential] Eligibility Clause, is whether persons in these categories are “natural born” citizens (as opposed to citizens by positive law), and the strong implication of a reading based on [Emmerich de] Vattel is that they are not.” [Emphasis mine.]
This is correct as far as it goes, but it is completely contrary to the ultimate conclusions of the article (as further reinforced by by my subsequent article Originalism and Birthright Citizenship).
It's true that determining the meaning of the eligibility clause is different from determining the meaning of the citizenship clause. And it's true that the influential eighteenth-century European writer Vattel articulated a view of citizenship based on parentage rather than place of birth. This distinction is classically expressed as the distinction between jus soli (citizenship from the soil) and jus sanguinis (citizenship from blood). And it's further true that Haley would not be a U.S. citizen under a strict jus sanguinis approach.
But as my articles should make completely clear, a strict jus sanguinis approach has never been the rule of either England or the United States. Blackstone explained in his Commentaries that the longstanding rule in England was that persons born within the domain of the English monarch were English subjects (with the exception of children of foreign diplomats and invading military). "The children of aliens, born here in England," he wrote "are, generally speaking, natural-born subjects, and entitled to all the privileges of such." (Commentaries, pp. 361-62.) On independence, the U.S. carried over the English rule, now applied to citizenship rather than subjectship. With one exception (an outlier discussed in the article), founding-era commentary and practice confirmed the principle of jus soli. Madison observed:
It is an established maxim that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United States… (remarks made during the 1st Cong., 1st Sess. in 1789).
The second article linked above, part I.A, reviews in more detail evidence from the early nineteenth century, in which legal authorities confirmed or assumed that birth in the U.S. to non-citizen parents conferred U.S. citizenship. And in practice, thousands of immigrants entered the U.S. in the early nineteenth century, and there is no evidence that their children who were born in the U.S. were treated as non-citizens or needed to apply for naturalization.
The more difficult question is the extent to which founding-era law and the eligibility clause also included an element of jus sanguinis citizenship. That question is the one to which my eligibility clause article is principally addressed. (In particular, it focuses on the status of people such as Senator Ted Cruz, who were born abroad with a U.S. citizen parent.) Although I conclude that those people are also within the original meaning of the eligibility clause, I acknowledge it is a somewhat close question; Fordham law professor Thomas Lee has an article partly to the contrary. However, as to the eligibility of persons born in the U.S. to non-citizen parents, I think the answer is straightforward: they are natural born citizens.
Posted at 1:17 PM