When someone comes along with a theory they think is obvious, but that hardly anyone else thinks is right, and the one holding the theory has no special expertise in the field, I’m apt to label the theorist a “crank.” I’ve done it on this blog. Today, however, I’m swapping roles and being the crank.
Most legal scholars believe that anyone who is born a US Citizen is a natural born citizen, and meets that piece of the eligibility requirement to become President of the United States. I fully agree. Where I fit my own definition of a crank is the way that I arrive that conclusion.
One mark of a crank is making legal arguments out of a dictionary instead of law and precedent. So I start cranking with the dictionary definition of “natural born” which is “having a quality at birth.” The Constitution doesn’t define “natural born citizen" but I have never found any document from our Founders that says “natural born citizen” has a special technical definition. Why does it have to be a “term of art?”
The U.S Supreme Court in the case of United States v. Wong Kim Ark cited approvingly Mr. Dicey in Digest of the Law of England with reference to the Conflict of Laws, where Dicey explains the difference between a British Subject, and a natural-born British Subject:
“British subject” means any person who owes permanent allegiance to the Crown. … “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.
He did not say “a subject who was born on the soil of England,” but one who became a subject at birth. And of course as we all know, the Court asserted the convertibility of “subject” and “citizen.”
If you think about it, the lack of a definition in the Constitution makes sense because in 1789, citizenship was defined by the States and not the Federal Government. Congress only had the power of naturalization under the Constitution and therefore they couldn’t define the citizenship of persons already born that way. That is, if natural born citizen means “citizen at birth” then the Constitution couldn’t have defined it because states had different definitions. My theory explains a puzzle: why the Constitution uses this term it doesn’t define, and whose common law derivation is controversial.
Now, the legal experts are going to look to the English Common Law for undefined terms in the Constitution (see Smith v. Alabama and Ex parte Grossman). That’s what lawyers are trained to do, but I say they are overthinking the problem, and as proof I keep coming back to the Naturalization Act of 1790. In that act, the Congress said explicitly that the children born of US fathers overseas were citizens. In the debate on that act, the argument was made that the United States should make provision for the children of its citizens born overseas, just has had the English centuries before. If it provides for someone, that means that the Act made people citizens at birth who were not citizens at birth before the Act. It means that these persons were not eligible to run for President when the Constitution was ratified. Nevertheless, that act called these new citizens “natural born citizens.” James Madison, principal author of the Constitution, was in that Congress, and George Washington, President of the Convention that produced the Constitution, signed it into law. Surely they understood that they were adding a new class of potential candidates for President.
If one applies the common law concept to the 1790 Act, all sorts of constitutional questions arise. If one applies the dictionary, there is no problem at all.
The plain English meaning of “natural born citizen” is anyone who is a citizen from birth. At different times in our history, the laws on who was a citizen from birth changed. The states originally defined it in various ways, the Congress defined it through various laws, and the Constitution nailed some of it down in the 14th Amendment. Whoever the law, statutory or common, says is born a citizen, that person is a natural born citizen.
One other mark of a crank is that they very stubbornly hold on to their theories, expecting other people to prove them wrong. Well?