Main Menu

New “natural born citizen” paper: sorry Ted

Mary Brigid McManamon, professor of law at Widener University School of Law has an upcoming paper in the Catholic University Law Review titled, “The Natural Born Citizen Clause as Originally Understood.”

The paper argues for a strict jus soli (born in the country) interpretation of the words “natural born Citizen” in the US Constitution, but explains:

This article, however, is not a comprehensive treatment of all the questions presented by the clause. It addresses only the issue that Governor Romney and Senator Cruz present: In the eyes of early Americans, would someone born in a foreign country of American parents be a “natural born Citizen” and therefore eligible to be President of the United States?

Print Friendly

53 Responses to New “natural born citizen” paper: sorry Ted

  1. avatar
    ballantine June 18, 2014 at 4:50 pm #

    The paper isn’t bad but her out of hand dismissal of the notion that the power of naturalization could have been understood to mean the ability to make natural born citizens is quite weak. If the power of naturalization in england included the power to make aliens natural born subjects eligible to hold office in England, why wouldn’t the power of naturalization in the United States include the same power. Such would not be amending the Constitution as it would mean that “natural born” included those natural born under the common law plus persons given such status by Congress. Her paper is very weak on these points.

  2. avatar
    Upgradedd June 18, 2014 at 5:24 pm #

    Before I read the link this is what I was taught way back when…
    The Natural Born Citizen Clause as what I was taught.

    In sixth grade (1959) we were taught: any baby born on US soil was a “natural born” citizen.
    In 9th grade I made friends with a new kid, an army brat and still my best friend. His father, The Colonel, mentioned in conversation, since my friends younger brother was born in Germany he could never be president.

  3. avatar
    Foggy June 18, 2014 at 5:37 pm #

    I don’t see why a child born to military members overseas shouldn’t be considered a natural born citizen. I oversimplify, but to me it’s more about when you got your citizenship, not where you were born. People born jus soli become citizens at birth; so do children of military overseas. Those who become citizens later are naturalized. Perhaps I’m biased because my dad was in the Navy, though all five of his kids were born here.

    If Cruz, god help us all, gets nominated or even worse, elected, we may find out more from the courts.

  4. avatar
    Paper June 18, 2014 at 5:51 pm #

    I was taught that if you wanted to be absolutely certain, then make sure your parents had you in the States (using time travel if necessary, I suppose; a slight joke by the teacher), and that being born a citizen outside of the States was an untested, open question.

    Upgradedd:
    Before I read the link this is what I was taught way back when…
    The Natural Born Citizen Clause as what I was taught.

  5. avatar
    Keith (not logged on) June 18, 2014 at 6:03 pm #

    Upgradedd:
    Before I read the link this is what I was taught way back when…
    The Natural Born Citizen Clause as what I was taught.

    In sixth grade (1959) we were taught: any baby born on US soil was a “natural born” citizen.
    In 9th grade I made friends with a new kid, an army brat and still my best friend. His father, The Colonel, mentioned in conversation, since my friends younger brother was born in Germany he could never be president.

    I haven’t had a chance to read the paper yet either.

    The author may have not considered this: the Constitutional Congress would have never contemplated a standing army, let alone an Army stationed overseas, even less with their family. So the issue would have never been considered by the Convention and as a result, this problem has ALWAYS been a legal gray area.

    Congress moved to clarify the problem when it acknowledged that John McCain was a natural born citizen. While the resolution is a ‘non-binding’, it is a powerful precedent that would be extremely difficult to reverse short of a Constitutional amendment.

  6. avatar
    Bob June 18, 2014 at 6:04 pm #

    My sister was born in 1947 in Japan during the US occupation when my parents were stationed there. She went to get a passport when she was in her twenties and the stupid clerk at the passport office actually told her that she was not a US citizen, that she was Japanese, and that she would need a Japanese passport to travel to Europe.

    Of course that was a incorrect but my father had to go to the passport office and prove that he had been in the military and had been stationed in Japan.

  7. avatar
    Dave B. June 18, 2014 at 6:44 pm #

    It’s a pretty thorough paper. And of course, it doesn’t so much as mention Vattel.

  8. avatar
    Jim June 18, 2014 at 7:04 pm #

    Foggy:
    If Cruz, god help us all, gets nominated or even worse, elected, we may find out more from the courts.

    Keith (not logged on): Congress moved to clarify the problem when it acknowledged that John McCain was a natural born citizen. While the resolution is a ‘non-binding’, it is a powerful precedent that would be extremely difficult to reverse short of a Constitutional amendment.

    I imagine that the Courts would rather stay out of it and there will be another resolution for Cruz, if necessary.

  9. avatar
    justlw June 18, 2014 at 7:51 pm #

    Cruz will not get the nom; he emanates way too much crazy. I will renew my quadrennial tradition of going way out on a limb and predicting that the GOP will nominate a rich white guy with nice hair.

    After he loses, the hardcore birther remnant will continue with whatever the au courant theory on Benghazi is, and we can all have another 8 years of debunking fun.

  10. avatar
    Sef June 18, 2014 at 8:48 pm #

    Re: Ted Cruz.

    “A natural-born subject or citizen ; a denizen by birth ; one who owes his domicile or citizenship to the fact of his birth within the country referred to. The term may also include one born abroad, if his parents were then citizens of the country, and not permanently residing in foreign parts. See U. S. v. Wong Kim Ark, 101) U. S. 049, 18 Sup. Ct 450, 42 L. Ed. 890; New llartlord v. Canaan, 54 Conn. 39, 5 Atl. 300.

    Law Dictionary: What is NATIVE? definition of NATIVE (Black’s Law Dictionary)”

    My understanding is that his parents were domiciled in Canada, not temporary residents. Hence per BLD, he would NOT be NBC. He would be a citizen by naturalization laws, not common law.

  11. avatar
    Sam the Centipede June 18, 2014 at 9:26 pm #

    Foggy:
    I don’t see why a child born to military members overseas shouldn’t be considered a natural born citizen. I oversimplify, but to me it’s more about when you got your citizenship, not where you were born. …

    That’s my interpretation of the phrase too as used in ordinary English: natural born citizen = born with the nature of (being a) citizen, just as the film title Natural Born Killers indicated that the main characters were born with the nature of (being) killers.

    Native (jus soli) birth is sufficient but not necessary. (Excluding diplomats, blah, blah.)

    Natural born does not mean native born. Sufficient but not necessary.

  12. avatar
    Dave June 18, 2014 at 10:08 pm #

    What I have to say has been hashed over here a thousand times, but: an essential element of any law is who gets to interpret it. And the natural born clause gets to be interpreted by the voters when they vote, and by Congress when they object or do not object to the results from the Electoral College.

    There is no way the voters or Congress is ever going to object to somebody who was born to a military family posted overseas.

    And I find it unlikely that voters or Congress will balk at someone in Cruz’s situation, a statutory citizen at birth.

    So a paper like this, while addressing an interesting question, is of no practical significance.

  13. avatar
    jayHG June 18, 2014 at 10:25 pm #

    Sef:
    Re: Ted Cruz.

    “A natural-born subject or citizen ; a denizen by birth ; one who owes his domicile or citizenship to the fact of his birth within the country referred to. The term may also include one born abroad, if his parents were then citizens of the country, and not permanently residing in foreign parts. See U. S. v. Wong Kim Ark, 101) U. S. 049, 18 Sup. Ct 450, 42 L. Ed. 890; New llartlord v. Canaan, 54 Conn. 39, 5 Atl. 300.

    Law Dictionary: What is NATIVE? definition of NATIVE (Black’s Law Dictionary)”

    My understanding is that his parents were domiciled in Canada, not temporary residents. Hence per BLD, he would NOT be NBC. He would be a citizen by naturalization laws, not common law.

    Did he go through the naturalization process? No, Cruz did not. He’s a natural born citizen….he’s an idiot, and chickens will grow lips before he’s nominated for president, but he’s natural born.

  14. avatar
    Dr. Conspiracy June 18, 2014 at 10:43 pm #

    Which the Congress did, by the way, in 1790.

    ballantine: If the power of naturalization in england included the power to make aliens natural born subjects eligible to hold office in England, why wouldn’t the power of naturalization in the United States include the same power.

  15. avatar
    Rickey June 18, 2014 at 11:47 pm #

    Keith (not logged on):

    The author may have not considered this: the Constitutional Congress would have never contemplated a standing army, let alone an Army stationed overseas, even less with their family. So the issue would have never been considered by the Convention and as a result, this problem has ALWAYS been a legal gray area.

    I have made that same point. How does “original intent” come into play when the circumstances of the issue at hand could never have been contemplated by the Founders?

    If there ever is a Supreme Court ruling on natural born citizen, i expect it to be that a citizen at birth is a natural born citizen.

    On the other hand, I will enjoy watching the birthers squirm if Cruz runs for President.

  16. avatar
    ellen June 19, 2014 at 2:33 am #

    In 1784 the state of Maryland made Lafayette a NATURAL born citizen by statute, indicating that at the time lawyers and other knowledgeable people understood that Natural Born citizen status is not merely limited to people who really were born on the soil but a legal term capable of being extended to people who were not born on the soil.

  17. avatar
    y_p_w June 19, 2014 at 3:00 am #

    Bob:
    My sister was born in 1947 in Japan during the US occupation when my parents were stationed there.She went to get a passport when she was in her twenties and the stupid clerk at the passport office actually told her that she was not a US citizen, that she was Japanese, and that she would need a Japanese passport to travel to Europe.

    Of course that was a incorrect but my father had to go to the passport office and prove that he had been in the military and had been stationed in Japan.

    She didn’t have a Consular Report of Birth Abroad, or whatever predecessor document was available at the time? That’s generally what’s needed, and I would think that the chain of command would see to it that children born overseas to service members would get all the paperwork to square away their status.

    I’d find it highly unlikely that an actual passport office clerk wouldn’t know enough to ask the right questions – something like “Do you have a Report of Birth Abroad?”. Now a post office or city/county clerk handling “passport acceptance” might not. I understand that many are barely trained and might have to consult a manual for anything other than someone with a regular birth certificate from a state.

  18. avatar
    JoZeppy June 19, 2014 at 11:10 am #

    ballantine: The paper isn’t bad but her out of hand dismissal of the notion that the power of naturalization could have been understood to mean the ability to make natural born citizens is quite weak. If the power of naturalization in england included the power to make aliens natural born subjects eligible to hold office in England, why wouldn’t the power of naturalization in the United States include the same power. Such would not be amending the Constitution as it would mean that “natural born” included those natural born under the common law plus persons given such status by Congress. Her paper is very weak on these points.

    Quite simply because the English have the concept of parlamentary supremecy, meaning if parlament passes it, it is legal. Our Congress, however is bound by the constitution. For undefined common law terms found in the Constitution, we look to the common law for their meaning. As far as I know, the Courts have only said we adopt the meaning of the term, not the entire body of law surrounding the term. If the common law term natural born means jus soli, Congress cannot alter that, as doing so would be amending the Constitution and changing who is qualified for the presidency (English parliment however would not be so bound, being supreme over all law). The case law is pretty clear on the subject that a naturalized citizen is identicle in his rights to the NBC for everything BUT qualification for the Presidency. Congress only has the power to naturalize. Therefore if you look to an act of Congress for the source of your citizenship, how could you be natural born? Even the one Supreme Court case we have on this subject (whose caption escapes me…I know it was cited by in a opinion on a birther motion for injuction or something…the dissent was written by Blackmun I beleive) where someone born abroad to citizen parents was to lose his NBC status, the language of the Court’s opinion was couched in the terminology of naturalization (although they never used the term). Blackmun’s (I’m 80% sure it was him) dissent flat out called it a naturalization case. Which takes us back to, you are either born, or naturalized a citizen, and naturalized citizens cannot be president.

    This has always been my position (I’m one of the few who feels McCain isn’t qualifeid to be president, although had he been elected, I would have accepted it).

  19. avatar
    JoZeppy June 19, 2014 at 11:21 am #

    ellen: In 1784 the state of Maryland made Lafayette a NATURAL born citizen by statute, indicating that at the time lawyers and other knowledgeable people understood that Natural Born citizen status is not merely limited to people who really were born on the soil but a legal term capable of being extended to people who were not born on the soil.

    This is also 6 years before ratification of the constitution….so not only may there have also been a greater acceptance of the concept of legislative supremecy in the states, it was before the Constitution locked some definition of NBC by it’s udefined use, before the Constitution granted Congress the power to naturalize, and before the Court clarified that a naturalized citizen has the same rights as the born citizen in everything but qualification for the presidency.

  20. avatar
    ballantine June 19, 2014 at 12:00 pm #

    I think you read too much into the notion that undefined terms are defined by the common law. First, the “common law” was an ambiguous term to the English sometimes meaning the common law prior to modification by statute and sometimes the common law after modification by statute. Second, while the court in the 19th century made such statements when looking to provisions that clearly came from the common law, the modern court hasn’t. Modern originalism looks to all relevant use of the term at the time to try to understand what the term meant to people at that time. This includes statutes, treatises, dictionaries, etc. Accordingly, the Court has looked to an English statute when construing the 2nd Amendment as the root of the Amendment was a statute, not the unmodified common law. Such is probably why Scalia says he looks to English law, not just the common law, as he realizes that it wasn’t just the common law that our legal terms were derived from.

    Accordingly, it seems quite plausible that the founding generation understood the term “natural born citizen” to be jus soli or anyone naturalized at birth by Congress as such was what a natural born subject meant at such time. Thus, Congress is not amending the Costitution if the Constitution was understood to give them such power.

    The court has not said anything meaningful with respect to a person like Cruz and probably nothing outside of dicta. In addition, saying he is a naturalized citizen is highly questionable based upon what it has said. For example, in Miller v. Allbright, the plurality called someone like Cruz a citizen at birth as distinguished from a naturtalized citizen. The confusion of such term goes back centuries. Lord Coke said Calvin, a natural born citizen, was naturalized by birthright. Howver, no one ever called him a naturalized subject. People like Cruz who were naturalized at birth by English statutes were called natural born subjects rather than naturalized subjects even though the statutes said they were being naturalized. In the United States, there is pretty much no early authority on this point at all. Hence my point that McManamon’s out of hand dismissal is weak.

  21. avatar
    JoZeppy June 19, 2014 at 1:37 pm #

    However, Rogers v. Bellei, 401 U.S. 815 (1971) repeatedly refers to someone in Curz’s position as naturalized, and couches the language in the decions clearly in terms of naturalization…It even cites to WKA for the proposition that birthright citizenship is not part of the common law. That leads me to conclude that Natural Born mean jus soli alone.

  22. avatar
    Sef June 19, 2014 at 1:51 pm #

    JoZeppy:
    However, Rogers v. Bellei, 401 U.S. 815 (1971) repeatedly refers to someone in Curz’s position as naturalized, and couches the language in the decions clearly in terms of naturalization…It even cites to WKA for the proposition that birthright citizenship is not part of the common law.That leads me to conclude that Natural Born mean jus soli alone.

    IOW, if Congress had not passed the naturalization laws Cruz would not even be a citizen.

  23. avatar
    Joey June 19, 2014 at 2:04 pm #

    I have always found the following section of Justice Gray’s holding in Wong Kim Ark to be of interest:
    “In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this Government. If not, and if the correct view is that they were aliens but collectively naturalized under the act of Congress which recognized them as natural-born, then those born since the Fourteenth Amendment are not citizens at all, [p715] unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized “in the United States.”—pages 714 & 715
    By the fifth clause of the first section of article two of the Constitution, it is provided that:
    No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of the Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

    In the convention, it was, says Mr. Bancroft, objected that no number of years could properly prepare a foreigner for that place; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, on the seventh of September, it was unanimously settled that foreign-born residents of fourteen years who should be citizens at the time of the formation of the Constitution are eligible to the office of President.”
    http://www.law.cornell.edu/supremecourt/text/169/649

  24. avatar
    bgansel9 June 19, 2014 at 2:07 pm #

    I am so happy to see that a local hometown university from my birth state did this. :)

  25. avatar
    ballantine June 19, 2014 at 2:14 pm #

    JoZeppy:
    However, Rogers v. Bellei, 401 U.S. 815 (1971) repeatedly refers to someone in Curz’s position as naturalized, and couches the language in the decions clearly in terms of naturalization…It even cites to WKA for the proposition that birthright citizenship is not part of the common law.That leads me to conclude that Natural Born mean jus soli alone.

    I wouldn’t put too much weight on the charactorizations in Miller or Rogers as they clearly were not addressing the point we are discussing and hence clearly dicta. They do point out confusion on the issue. I do believe that, as an academic question, the better argument appears to be that the term “natural born” be limited to the native born. However, it is hardly a compelling case and I don’t think the contrary argument can be casually dismissed. It is certainly plausible that the Court would look to whether someone like Cruz would have been considered a natural born subject or naturalized subject in England in such period. I think there is much evidence that he would have been considered the former, not the latter. Chitty, for example, perhaps the leading English scholar after Blackstone put him in the former:

    “From this examination of the principles of the common law the relaxations introduced by the statutes, and the leading decisions thereon, we collect that the rule is, that persons born within the allegiance, power, or protection of the crown of England, are natural-born subjects; which words, allegiance, power, or protection, at this day embrace not only persons born within the dominions of his majesty, or of his homagers, and the children of subjects in the service of the king abroad, and the king’s children, and the heirs of the crown, all of whom were natural born subjects by the common law, but also, under the statutes above mentioned, all persons, though born abroad, whose father or grandfathers by the father’s side were natural-born subjects at common law, unless the father or paternal grandfather, through whom the claim is made, was at the time of the birth of such children liable, in case of his return into this country, to the penalties of treason or felony, or was in the actual service of any foreign prince then at enmity with the crown of England: excepting always from the benefit both of the common law and of the statutes, those artificers and manufacturers who are declared aliens by the 5 Geo. 1. c. 27.”

    Notice he finds persons like Cruz to be natural born subjects under the common law relaxed by statute. Chitty would go on to describe as “naturalized subejcts” the persons who were naturalized after birth by English statute.

  26. avatar
    ballantine June 19, 2014 at 2:20 pm #

    Joey:
    I have always found the following section of Justice Gray’s holding in Wong Kim Ark to be of interest:
    rel=”nofollow”>http://www.law.cornell.edu/supremecourt/text/169/649

    That is the dissent.

  27. avatar
    JoZeppy June 19, 2014 at 5:26 pm #

    I’m not sure you can dismiss Rogers discussion as dicta. The very basis of the opinion is Congress’ power to naturalize. The Court has to establish a basis of his citizenship that is beyond the 14th amendment. The conclusion that naturalizataion by decent is not part of the common law is a required part of the rationale, because without that conclusion, Congress could not condition the citizenship. And the entire basis of the opinion is that Congress is free to condition naturalization because no alien is entitled to citizenship. I don’t know how you can strip out that someone born abroad to American citizen parents is naturalized, and still have anything left in the opinion. To say that inherent in Congress’s power to pass naturalization laws is the power to alter the meaning of NBC makes the use of the term meaningless. I fail to see how one can justify the ability of Congress to effectuate an effective change to the Constitution without passing an Amendment.

  28. avatar
    ballantine June 19, 2014 at 6:37 pm #

    JoZeppy:
    I’m not sure you can dismiss Rogers discussion as dicta.The very basis of the opinion is Congress’ power to naturalize.The Court has to establish a basis of his citizenship that is beyond the 14th amendment.The conclusion that naturalizataion by decent is not part of the common law is a required part of the rationale, because without that conclusion, Congress could not condition the citizenship.And the entire basis of the opinion is that Congress is free to condition naturalization because no alien is entitled to citizenship.I don’t know how you can strip out that someone born abroad to American citizen parents is naturalized, and still have anything left in the opinion.To say that inherent in Congress’s power to pass naturalization laws is the power to alter the meaning of NBC makes the use of the term meaningless.I fail to see how one can justify the ability of Congress to effectuate an effective change to the Constitution without passing an Amendment.

    Again, you are trying to read too much into Rogers. First of all, the Court’s statements in other cases about naturalized citizens not being eligible to be Presidnet were clearly dicta in which the court never defined the term. Second, why would Rogers trump Miller v. Allgright? It doesn’t as neither never addressed the issue we are discussing. The holding of Rogers was that he didn’t fall under the 14th Amendment as being naturalized at birth outside the US didn’t fall under such language. It never addressed whether being naturalized at birth was understood by the founders as being natural born. The inconsistent use of the term “naturalized” by the Court as well as English and American authroities points out that there has never been uniform opinion on this point and it has never been directly addressed.

    I don’t know why you can’t understand that if in 1787 everyone understood that the power of naturalization included the power to make natural born subjects under jus sanguinis as was the definition of the term under English law, why people would not think the power bestowed on Congress didn’t include the same power. You are simply defining the term as you understand it, not how the English in 1787 understood it. If we are gong to define “natural born” by English law, why wouldn’t we define “naturalization” by English law as well. And if persons like Cruz were natural born subjects, why wouldn’t they be natural born citizens?

  29. avatar
    Keith June 19, 2014 at 11:15 pm #

    I was long of the opinion that put me in the “McCain is technically not NBC” camp, but found it a fundamentally unsatisfying result. McCain would be being punished for something his parents did, and that something was serve their country honorably. Added to that unsatisfying result is that the Constitution forbids that blood libel – punishment of children for the actions of their parents.

    For me, the resolution came with the deep understanding that (1) there are only two kinds of citizens, “natural born” and “naturalized” and (2) Congress has the power to make immigration laws.

    From (2) it follows that Congress can decide WHO is ‘eligible’ to be naturalized. At one time Congress decided that Chinese were not eligible for naturalization – that was within their power. What is not within their power is the naturalization of those who are already citizens – and they have a thorough understanding of who is already a citizen and therefore does not need to be naturalized to be a citizen. John McCain is one such citizen; Congress has noted that persons in his situation are citizens without the application of its naturalization powers.

    From (1), it follows that any person who is not a naturalized citizen is, perforce, a natural born citizen. Since John McCain is a citizen without benefit of the Congressional naturalization powers, he is a natural born citizen.

    With this understanding the crux of the matter is ‘when’ not ‘where’ the attribute ‘citizen’ is conferred. If a person is a citizen at the instant it is born then the person is a ‘Citizen, natural born’, that is, a “Natural born citizen”. If the person is granted citizenship after birth, then the person is a ‘Citizen, natural made’, that is, a “Naturalized Citizen”.

  30. avatar
    Keith June 19, 2014 at 11:35 pm #

    Another thought I have had that has been suppressed lately because I can no longer find the references to back it up – so take it for what it is worth with that understanding.

    Some years ago I read an article discussing the use of the word ‘natural’ with respect to citizenship. The author put forth the proposition that it was originally a distinction between those warriors whose ‘natural loyalty’, that is ‘birth loyalty’ was to the King, and those, such as foreign mercenaries, whose ‘natural loyalty’ was to someone other that the King to whom they were currently sworn.

    Thus the idea that only ‘naturals’ could own land; the King didn’t want his realm overrun by mercenaries owning him no allegiance after the end of the contract. Provisions held that could make those foreigners into naturals if it pleased the Crown, of course.

    So the difference was between ‘natural’ loyalty and ‘bought’ loyalty. In business you have ‘owners’ (natural loyalty) and ‘employees’ (bought loyalty). Many companies even have profit-sharing or employee share purchase plans (naturalized!).

    Seen in this way, the words ‘natural’ and ‘citizen’ are synonyms. A Natural Born Citizen is exactly a “Citizen Born Natural” or a “Citizen Born” or a “Born Citizen” or a “Natural Born” or a “Born Natural”. Each phrase evokes exactly the same information and meaning: one whose citizenship is gained naturally, at birth, rather than afterward by choice.

  31. avatar
    JoZeppy June 20, 2014 at 10:38 am #

    ballantine: I don’t know why you can’t understand that if in 1787 everyone understood that the power of naturalization included the power to make natural born subjects under jus sanguinis as was the definition of the term under English law, why people would not think the power bestowed on Congress didn’t include the same power. You are simply defining the term as you understand it, not how the English in 1787 understood it. If we are gong to define “natural born” by English law, why wouldn’t we define “naturalization” by English law as well. And if persons like Cruz were natural born subjects, why wouldn’t they be natural born citizens?

    Because the English parliament and the US Congress do not have the same scope of power. The powers of parliament are limitless. The English have parliamentary supremecy. The US Congress is bound by the Constitution. We have a case law that states that birth right citizenship is not part of the common law. If Congress has the power to re-define a term of art in the Constitution, they have the defacto power to amend without going through the amendment process. If we adopt a definition of naturalization that goes beyond simply removing one’s alienage, to the ability to refine the very nature of one’s citizenship, we’re going to throw a monkey wrench into all the other case law definitions citizenship that draw the line as by birth and by naturalization.

  32. avatar
    JoZeppy June 20, 2014 at 10:47 am #

    Keith: I was long of the opinion that put me in the “McCain is technically not NBC” camp, but found it a fundamentally unsatisfying result. McCain would be being punished for something his parents did, and that something was serve their country honorably. Added to that unsatisfying result is that the Constitution forbids that blood libel – punishment of children for the actions of their parents.

    How is he being punished? The only persons entitled to citizenship are those born on the soil. Being born overseas, McCain has to rely on Congressional action and whatever conditions they place on him for a grant of citizenship. Whether it offends your sense of justice is totally irrelevant, since Congress is not by any sense required to act equitably in their exercise of the passing naturalization laws (as you yourself have noted).

    Keith: What is not within their power is the naturalization of those who are already citizens – and they have a thorough understanding of who is already a citizen and therefore does not need to be naturalized to be a citizen. John McCain is one such citizen; Congress has noted that persons in his situation are citizens without the application of its naturalization powers.

    Except without an act of Congress, John McCain is not any kind of citizen, and an alien. If naturalization is the removal of alienage, then the act of Congress, passed a few years after his birth, was in fact an act of naturalization.

    Keith: From (1), it follows that any person who is not a naturalized citizen is, perforce, a natural born citizen. Since John McCain is a citizen without benefit of the Congressional naturalization powers, he is a natural born citizen.

    Except he does in fact rely on Congressional action for his citizenship….a grant which Rogers recognized that Congress is under no obligation to grant.

  33. avatar
    ballantine June 20, 2014 at 11:15 am #

    JoZeppy: Because the English parliament and the US Congress do not have the same scope of power.The powers of parliament are limitless.The English have parliamentary supremecy.The US Congress is bound by the Constitution.We have a case law that states that birth right citizenship is not part of the common law.If Congress has the power to re-define a term of art in the Constitution, they have the defacto power to amend without going through the amendment process.If we adopt a definition of naturalization that goes beyond simply removing one’s alienage, to the ability to refine the very nature of one’s citizenship, we’re going to throw a monkey wrench into all the other case law definitions citizenship that draw the line as by birth and by naturalization.

    You keep missing the point in that in determining what power Congress was given to naturalize, the Court would likely look to what power Parliament had. You seem to want to define some terms by English law, but not others. If the Court defined the power of naturalization as I have suggested, they would not be amending the Constitution. I don’t know how many times I need to repeat the same thing.

    There is dicta rejecting the statements by Brooke and others arguing Calvin’s Case included jus sanguinis and hence the statutes we were referring to were declartory. This was debated for many years. Such court did not need to address that argument and did not address the argument that I was making, i.e., that “natural born” in 1787 was understood to include persons naturalized by statute which seems to be a perfectly reasonable originalist argument. I can think of no reason why an originalist would limit the inquiry to just the common law meaning if the object of the exercise is what the term was generally understood to mean.

    I don’t think it will throw a monkey wrench into anything as the court statements on these issues have been far from clear and mostly dicta. Indeed, the status of persons like Cruz has been a source of confusion going back to Calvin’s Case as has the actual meaning of the terms like “naturalization.” The court could settle these issues once and for all, though I doubt it will ever bother.

  34. avatar
    Dr. Conspiracy June 20, 2014 at 11:18 am #

    I have never seen a satisfying argument that “natural born citizen” is a term of art, the definition of which is a list of the classes of persons who are natural born citizens by the common law.

    “Felony” is an undefined term in the Constitution that we would look to the Common Law for definition, but I would not think anyone would argue that a list acts that were considered felonies under the common law defines the term.

    Likewise we wouldn’t exclude hijacking an airplane from the definition of piracy (another undefined term in the Constitution) just because the Common Law only refers to boats.

    Certainly we have ample sources that say that certain individuals in England meeting certain conditions were natural born subjects in England according to the common law, but we get back to the same necessary and sufficient condition confusion that the birthers make in using Minor to define natural born citizen.

    Or let me ask it another way. If being born in the legiance of the monarch defines natural born citizen, would not legislation making new classes born in the legiance of the monarch extend the class of natural born citizens, without changing the common law?

    JoZeppy: If Congress has the power to re-define a term of art in the Constitution, they have the defacto power to amend without going through the amendment process.

  35. avatar
    ballantine June 20, 2014 at 11:28 am #

    JoZeppy: How is he being punished?The only persons entitled to citizenship are those born on the soil.Being born overseas, McCain has to rely on Congressional action and whatever conditions they place on him for a grant of citizenship.

    I’m not sure that is right. The English common law was based upon being born in the allegiance which didn’t necessarily mean the soil. English authorities were never certain with respect to which person born overseas were in the service of, and still under the allegiance of, the King. There were no military bases in Calvin’s time but it seems to me that a pretty good case can be made that persons on a military base were still in the allegiance of the nation. The English rule was generally thought to be that if a subject had issue on a military ship or land occupied by the military, they were born within the allgiance of the crown. This was, of course, before the notion of military bases in friendly nations came about. It is an interesting question I think.

  36. avatar
    sfjeff June 20, 2014 at 12:47 pm #

    Dave: What I have to say has been hashed over here a thousand times, but: an essential element of any law is who gets to interpret it. And the natural born clause gets to be interpreted by the voters when they vote, and by Congress when they object or do not object to the results from the Electoral College.

    There is no way the voters or Congress is ever going to object to somebody who was born to a military family posted overseas.

    And I find it unlikely that voters or Congress will balk at someone in Cruz’s situation, a statutory citizen at birth.

    So a paper like this, while addressing an interesting question, is of no practical significance.

    This is pretty much what I think- while it is fun to argue about how angels are at the head of the natural born pin- it really comes down to the voters and Congress.

    No one will ever deny the Presidency to a person born overseas to a military family. Unlikely voters will even care in a situation like Cruz’s- the notion of being born a citizen= natural born citizen is pretty easy for anyone but Birthers to agree to.

  37. avatar
    Keith June 20, 2014 at 10:07 pm #

    JoZeppy: The only persons entitled to citizenship are those born on the soil.

    Incorrect. The only persons entitled to citizenship are those who are natural born citizens. [Keith later corrected this comment. Doc.]

    How is he being punished?

    He isn’t, actually. He is acknowledged as a natural born citizen. Were he not so acknowledge, he would be being punished by being banned from a post that every other person born a citizen is eligible.

    Naturalization is a process that makes a non-citizen a citizen. It is an agreement between an individual and the nation. It is an affirmative decision made. The process can be refused by either party.

    Natural-born is an existential state, a fact. No agreement was established between the individual and the nation. No affirmative decision was made. The process cannot be refused by either party.

    John McCain is a citizen, not because he asked for and was granted citizenship, but because he was born a citizen. No act can change that simple existential fact and neither can the geographical location.

    That fact that an Act of Congress defined a class of persons that would be citizens at birth whose citizenship would otherwise be in doubt means precisely that those citizens do not need to be naturalized.

    McCain was born a citizen, there is no doubt of that. He was not and did not need to be naturalized. The only possible conclusion is that he is a natural born citizen.

  38. avatar
    John Reilly June 20, 2014 at 10:21 pm #

    Three points:

    1. Anyone elected as President by the voters and electors, and confirmed by Congress, is a natural born citizen. If you can’t persuade the voters, electors and/or Congress that, for example, not give a majority vote to Sen. Cruz, he is a natural born citizen.

    2. I would not think the founding Fathers would have any problem identifying a person born overseas to diplomat Americans as a natural born citizen. We do not even need to look to the fiction that the embassy is American soil. No one (at least no rational person) was inclined to deny the Presidency to Sen. McCain under his circumstances. Nor should they.

    3. Looking at English law is, to me, somewhat problematic, as the English do not require that their King or Queen be born in England, be English, or, indeed, read, write or speak English. In other words, the King or Queen of England need not be a natural born citizen. The only qualifications are that 1. you are Protestant (Sophia jumped over 50 Catholics), and 2. you are next in line as a descendant of Sophia of Hanover under the Act of Settlement of 1701. The English were not troubled with the lack of natural born status of George I. Indeed, in 1705 Parliament naturalized Sophia and her children.

  39. avatar
    J.D. Sue June 21, 2014 at 12:43 am #

    ballantine: I can think of no reason why an originalist would limit the inquiry to just the common law meaning if the object of the exercise is what the term was generally understood to mean.


    This.

  40. avatar
    BarKahn June 21, 2014 at 1:46 am #

    I suggest that, for the moment, we put aside debate and conjecture about the antecedents for the Constitution’s use (meaning and intention) of the “natural born Citizen” requirement, and put aside debate and conjecture over the various and well known court opinions on this subject. Instead, let’s look at the conduct of the major parties as it relates to their selection of presidential nominees made between the Washington and last Bush incumbencies. I believe (and welcome any corrections) that both major parties chose candidates who were born in the US to two American parents. The controversy over Chester A Arthur’s birth circumstances (circa 1880) only underscores the consistency of the birth circumstances of the major political party’s presidential nominees for about 208 years, as does several fairly recent and unsuccessful federal legislative attempts to enact other divergent definitions. This is an empirical approach, and circumstantial in nature, but, I believe, it provides strong circumstantial evidence that, prior to 2007, both major political parties shared a common understanding of the meaning–and the intent–of the constitutional prescription. Circumstantial material (or evidence) is used in law and scholarly research to draw particular inferences about issues under inquiry, and should be regarded as yet an additional method to settle an intensely debated issue. While I believe that the inference to be drawn is obvious and inescapable, I, like you, cannot rid myself of views that I bring to the inference(s) I draw; I may be blind to other or another possibly conflicting inference that should be properly drawn. So I invite your comments, which shall be read with care and respect.

  41. avatar
    Keith June 21, 2014 at 2:55 am #

    Keith: JoZeppy: The only persons entitled to citizenship are those born on the soil.

    Incorrect. The only persons entitled to citizenship are those who are natural born citizens.

    I messed that up, sort of. What I said is correct, but it isn’t what I meant to say in that reply.

    I meant to say that only persons eligible to be President are those who are natural born citizens – which of course doesn’t really address the assertion you made.

    To complete my original statement reply, however, NBC’s are entitled to citizenship and cannot lose their citizenship except by positive action on their part. Aliens are ‘eligible’ for Citizenship according to Congressional action.

    ‘Entitlement’ is only applicable to NBC, but ‘born on the soil’ is not, as you incorrectly assert, the only criterion for NBC.

    It happens that there is no NBC definition in the Constitution, the specification that people “born in the United States” are citizens is not a definition of NBC; it is an acknowledgment that those persons, “born in the United States”, are entitled to citizenship. It is silent on whether or not they are “natural born citizens” or not, except to say that another class, the “naturalized” class also exists.

    You have to understand the PURPOSE of the amendment; it was to overturn the abomination of the ‘Dred Scott’ decision that found that black folk could never be a citizen of any kind, born in America or not – they couldn’t even be naturalized. The large majority of Americans knew that was NOT the result that was ‘right’ in any way shape or form. The 14th was promulgated to specify that no person “born on the soil” could lose their entitlement to citizenship – it was not promulgated to define “Natural Born Citizenship”.

    There is nothing in the Constitution that says that being “born on the soil” is the only way an ‘entitlement’ to citizenship exists. It only says that ‘this class of persons has the entitlement’.

    Wong Kim Ark was being denied exactly that entitlement: he was “born on the soil” and yet the Government was trying to deny him the right to citizenship. The fact that it was lamented that this meant that WKA would be eligible to be President proves that it is the act of being ‘born a citizen’ that confers the existential state of ‘natural born citizen’. If Wong was a citizen, and he was not naturalized (persons of Chinese descent were barred from the naturalization process), then he could only be a natural born citizen. There is no other category. If you are born a citizen, you are a natural born citizen.

  42. avatar
    Dr. Conspiracy June 21, 2014 at 7:12 am #

    The 19th century controversy surrounding Arthur was about where he was born, not about his parents’ citizenship, and the “controversy” consisted primarily of one birther. The false allegations about Arthur were akin to the situation of Ted Cruz today. Of course the vast majority of Americans are born in the country to two citizen parents. The fact that we have two presidents with a non-citizen parent is therefore expected to be unusual just based on the pool of available persons.

    I would also ask where you came up with the item that all other major party nominees were born in the country to two citizen parents? Last time I checked, John McCain did not meet that requirement (the Panama Canal Zone was not an incorporated US Territory, and those born there in 1936 were not automatically citizens at that time).

    BarKahn: The controversy over Chester A Arthur’s birth circumstances (circa 1880) only underscores the consistency of the birth circumstances of the major political party’s presidential nominees for about 208 years, as does several fairly recent and unsuccessful federal legislative attempts to enact other divergent definitions.

  43. avatar
    J.D. Sue June 21, 2014 at 2:55 pm #

    BarKahn: Instead, let’s look at the conduct of the major parties as it relates to their selection of presidential nominees made between the Washington and last Bush incumbencies. I believe (and welcome any corrections) that both major parties chose candidates who were born in the US to two American parents. . . .

    ——
    . . . white, male, Christian. There’s your empirical evidence. No doubt that any selection of a presidential nominee who did not fit this criteria would result in a challenge to his/her legitimacy–as someone the founders did not contemplate when drafting Article II and the parties did not select thereafter through the last Bush.

  44. avatar
    Arthur June 21, 2014 at 4:01 pm #

    BarKahn: Instead, let’s look at the conduct of the major parties as it relates to their selection of presidential nominees made between the Washington and last Bush incumbencies. I believe (and welcome any corrections) that both major parties chose candidates who were born in the US to two American parents.

    Barry Goldwater (b. 1909) was not born in the United States, as Arizona did not become a state until 1912.

  45. avatar
    Sef June 21, 2014 at 5:24 pm #

    BarKahn: Instead, let’s look at the conduct of the major parties as it relates to their selection of presidential nominees made between the Washington and last Bush incumbencies. I believe (and welcome any corrections) that both major parties chose candidates who were born in the US to two American parents.

    Anyone can draw a straight line on log-log paper among any set of data points as long as the outliers are judiciously discarded.

  46. avatar
    Dr. Kenneth Noisewater June 21, 2014 at 5:29 pm #

    Arthur: Barry Goldwater (b. 1909) was not born in the United States, as Arizona did not become a state until 1912.

    The first major candidate for the republican party John C. Fremont had parents who were foreign neither parent was a citizen.

  47. avatar
    gorefan June 21, 2014 at 5:38 pm #

    .

    BarKahn: This is an empirical approach, and circumstantial in nature, but, I believe, it provides strong circumstantial evidence that, prior to 2007, both major political parties shared a common understanding of the meaning–and the intent–of the constitutional prescription.

    Vice President Charles Curtis was born in the territory of Kansas.

    Using your empirical approach we can rule women out as Presidential candidates.

    If your circumstantial case, that all major parties understand the meaning of the qualifying terms, is true than it stands to reason that no major party would ever consider a candidate who was less than 35 or had not been a resident for 14 years or a natural born citizen. Yet historically we see that the a major party have considered men who were not born in the US as potential candidates for president or vice-president.

    1900 – George McClellan Jr. (born in Dresden, Saxony) was considered a viable vice-presidential candidate for William Jennings Bryan.

    1904 – George McClellan Jr. considered as a potential candidate for president.

    1954 – Franklin Roosevelt Jr. (New Brunswick, Canada) considered by some commentators as a possible presidential candidate.

    1960 – Christian D. Herter (Paris, France) considered a run for president to test the NBC clause.

    But no major party has ever considered a naturalized citizen as potential presidential material unless they changed the Constitution.

  48. avatar
    Whatever4 June 21, 2014 at 6:01 pm #

    BarKahn:
    I believe (and welcome any corrections) that both major parties chose candidates who were born in the US to two American parents.

    In 1856, the candidates were James Buchanan (Democratic), John C. Fremont (Republican), and Millard Fillmore (American). Fremont was born out of wedlock to a French-Canadian born in Quebec, who arrived in the US 2 years before Fremont was born. His birth status as an illegitimate child was well known. http://barackryphal.blogspot.com/2010/05/john-charles-fremont-and-natural-born.html

  49. avatar
    Whatever4 June 21, 2014 at 6:09 pm #

    gorefan:
    .

    Vice President Charles Curtis was born in the territory of Kansas.

    Using your empirical approach we can rule women out as Presidential candidates.

    If your circumstantial case, that all major parties understand the meaning of the qualifying terms, is true than it stands to reason that no major party would ever consider a candidate who was less than 35 or had not been a resident for 14 years or a natural born citizen.Yet historically we see that the a major party have considered men who were not born in the US as potential candidates for president or vice-president.

    1900 – George McClellan Jr. (born in Dresden, Saxony) was considered a viable vice-presidential candidate for William Jennings Bryan.

    1904 – George McClellan Jr. considered as a potential candidate for president.

    1954 –Franklin Roosevelt Jr. (New Brunswick, Canada) considered by some commentators as a possible presidential candidate.

    1960 – Christian D. Herter (Paris, France) considered a run for president to test the NBC clause.

    But no major party has ever considered a naturalized citizen as potential presidential material unless they changed the Constitution.

    Also Lowell P. Weicker, Jr (Paris France) 1980 Republican, withdrew before the primaries.

  50. avatar
    Keith June 21, 2014 at 9:50 pm #

    Arthur: Barry Goldwater (b. 1909) was not born in the United States, as Arizona did not become a state until 1912.

    Dr. Kenneth Noisewater: The first major candidate for the republican party John C. Fremont had parents who were foreign neither parent was a citizen.

    And he’s a folk hero in Arizona just like Barry AuH2O

  51. avatar
    Keith June 21, 2014 at 9:54 pm #

    Whatever4: .Fremont was born out of wedlock to a French-Canadian born in Quebec, who arrived in the US 2 years before Fremont was born. His birth status as an illegitimate child was well known.http://barackryphal.blogspot.com/2010/05/john-charles-fremont-and-natural-born.html

    So you are saying his name should have been his name should have been John Snow?

  52. avatar
    Keith June 21, 2014 at 9:58 pm #

    Whatever4: Also Lowell P. Weicker, Jr (Paris France) 1980 Republican, withdrew before the primaries.

    Also George W. Romney (Colonia Dublán, Chihuahua, Mexico) 1968 Republican, withdrew before the primaries.

  53. avatar
    interestedbystander June 22, 2014 at 4:34 am #

    John Reilly:
    “The English were not troubled with the lack of natural born status of George I.Indeed, in 1705 Parliament naturalized Sophia and her children.”

    Nor are we now for our PM – not long ago a New Zealander had a chance of becoming PM by standing in the Labour leadership contest, but lost. And let’s not forget Churchill!

    I have no doubt we would embrace a foreign born PM in the future.

333333 44444
5555555
6666666