I have nothing against “originalism,” the judicial view that the Constitution should be interpreted as it was interpreted by those who ratified it way back in 1788, or the contemporaries of its amendments. (I’m open to arguments against the idea.) What I consider bogus is the particular argument being made today, that under the originalist position, Ted Cruz is not eligible to be president.
Here is a very skeletal version of the originalist argument:
- Birthright citizenship under the Constitution is established by the appearance of the words “natural born citizen” in the Constitution. That is, one can infer that anyone who is a “natural born citizen” is a citizen.
- Natural born citizen is a legal term derived from the English Common Law term “natural born subject.”
- Under English Common Law, only persons born within the territory of England were natural born subjects.
- Therefore only persons born within the territory of the United States are natural born citizens.
Here are my objections to this argument.
The Constitution does not define citizenship
I do not think that the Framers of the Constitution ever intended that birthright citizenship in the United States was established by the Constitution. I say that for two reasons. First, it would seem to me that if that were their intent, then there would have been a section in the Constitution (as there are in constitutions of other countries) that said plainly: “the Citizens of the United States are ….” All we have is the words on presidential eligibility that presume that there were already natural born citizens. Attorney General Edward Bates said this in his Opinion on Citizenship (1862):
The Constitution itself does not make the citizens, (it is. in fact,made by them.)
James Madison, a principal author of the Constitution, said in a debate over the citizenship of Congressman Smith in 1789:
It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us; but since this has not been the case, let us settle some general principle before we proceed ….
That is, citizenship in the United States was principally defined by the states, not the Constitution, and further when no state statute informed the citizenship of Smith, Madison looked not to the Common Law, but to “general principle.”
Can we actually read the minds of the Founding Generation?
I do not know any text explaining how any Framer of the Constitution understood the term “natural born citizen” much less what a consensus view was, if indeed there even was a consensus view. Given the fact that the English Common Law and English statutes in 1789 had differing qualification of a “natural born subject” I see no justification for concluding that any particular Framer or Ratifier understood one over the other. Some Framers were lawyers, but some were farmers. The court cases we have on citizenship seem to derive only from what lawyers may have thought, and early American lawyers appealed the Common Law when it was all they had. The paucity of statues and authorities does not mean that the Common Law was the intended source.
Dictionary readers might have thought that the term just meant someone was born a citizen [under state law].
Does the English Common Law really define “natural born subject” by place of birth?
While most authorities cite Lord Coke’s opinion on Calvin’s Case for a definition of “natural born subject” there is a respectable minority who would argue that the principle of the recognition of rights of infants born to English subjects abroad is so ancient as to be considered part of the Common Law.
Limiting the definition of “natural born citizen” to the English Common Law is unjustified
The Supreme Court has said on numerous occasions that interpreting terms in the US Constitution requires reference to
- The English Common Law
- English institutions at the time of ratification
- English statutes at the time of ratification
To focus solely on the English Common Law, while tossing aside English Statutes that called subjects born abroad “natural born subjects” is a rather arbitrary decision.
The historical record is insufficient to support the originalist argument. We really don’t know who the Framers would have considered eligible to be president, or even if they would agree among themselves. There can be no doubt that those born citizens in the country are natural born citizens, since the basic provisions of the English Common Law were in force in all of the 13 original states. What we cannot know is whether the Framers intended to restrict eligibility to the home born, or whether their views included the foreign-born children of citizens. We cannot know that the Framers intended that Congress be unable to do what Parliament had done in creating new “natural born” subjects by statute.