Professor Einer Elhauge recently blogged here at the Originalism Blog about the Natural Born Citizen (NBC) Clause. I previously offered an interpretation of the NBC Clause that basically interprets the word “natural” to mean “native” which in turn means either an “inhabitant” or an “offspring.” I thank Professor Elhauge for pointing out problems he sees in my interpretation.
He links to a 1967 article by Isidor Blum titled Is Gov. George Romney Eligible to Be President? Part 1 and that article plainly says “’natural’ meant ‘native.’” I agree with Blum about that. As I already pointed out, James Iredell used the word “native” in this context as a noun rather than an adjective ("No man but a native, or who has resided fourteen years in America, can be chosen president”). And, I think Iredell was correct. So, even if it might be problematic to use the old definitions of the noun "natural" (as Professor Elhauge argues), it still would be okay to use the old definitions of the noun "native," which embrace both inhabitants as well as offspring. This is not to say that an offspring born abroad automatically becomes a "natural born citizen," but I do think he automatically becomes "natural born," whereas the citizenship is up to Congress.
At this time, I would only add that, generally speaking, no court should overturn eligibility decisions (or other governmental decisions) unless the court is free of doubt, and here we have quite a lot of doubt.
MIKE RAMSEY ADDS: I also thank Professor Elhauge for his thoughtful post. While I have various quibbles, I think our essential difference is that he discounts the British statutory practice and the 1790 U.S. statute, both of which appear to define certain people born outside the territory as "natural born" based on their parentage.
Professor Elhauge says that these statutes did not actually purport to make such people "natural born" — they only gave them the rights of people who were in fact natural born. I do not see it that way. First, Blackstone, describing the British statutes, said that persons covered by the statutes "are now natural-born subjects themselves, to all intents and purposes, without any exception" (vol. 1, p. 361) (emphasis added). Second, while it's true that the 1790 statute says that persons born outside the U.S. to U.S. citizen parents shall be "considered as" natural born citizens, this language does not suggest anything other than that they are natural born citizens. As was pointed out by a commentator on this blog, the same statute says that adult aliens who go through the statutory naturalization process shall be "considered as" citizens — which obviously means not just that they have the rights of citizens, but that they are citizens. Thus I think it clear that the statutes claimed the ability to declare people born abroad to citizen/subject parents to be "natural born."
Professor Elhauge's other core contention is that "natural born citizen" must mean something more than simply "born citizen" to avoid making "natural" superfluous. I confess that this was my initial instinct, when I began work on my paper on the subject (this instinct is still reflected in some of the paper's opening discussion). But I'm now convinced that, instead, "natural born" (or as it was often written, "natural-born") was a single concept meaning "a state existing at birth" — as established by either common law or statute. Indeed, we still use the phrase in this unified way today in other contexts: a "natural born leader" is a person who is a leader from birth; a "natural born killer" is someone born to be a killer. "Natural" does not add anything to "born" in either case.
Posted at 10:21 AM