I expended quite a bit of research effort, and spent quite bit of time in thought to satisfy in my own mind on what the term “natural born citizen” in the US Constitution means. I eventually decided that anyone who was born a US Citizen is a natural born citizen.
There is wide agreement in the legal community that the term “natural born citizen” in the Constitution derived from the term “natural born subject” found in English Common Law. The US Supreme Court in the case of US v. Wong made it abundantly clear that the conditions of the English Common Law made natural born citizens in America too, and had done since the beginning. Where the difficulty comes is that a number of academic authorities say that the “definition” of natural born subject in English Common Law is someone born in the sovereign territory of the monarch of England, and as such excludes anyone born a British subject elsewhere (specifically the children of English subjects). English statutes call such expatriate’s children natural born subjects (and have done since before the American Revolution); however, this is statutory law and not common law. (A few authorities say that these statutes are so ancient as to be included in the Common Law, and a few say that the American Constitution is based both on the English Common Law and applicable English statutes).
All of this ground has been plowed many times on this web site. Most authorities would say that “natural born subject” was defined by Lord Coke in Calvin’s Case, and perhaps use a citation like this from Lord Chief Justice Cockburn (Cockburn on Nationality) for definition (emphasis added):
By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.1
I eventually arrived at an uncomfortable argument. I said that “natural born subject” was not defined by Calvin’s Case as someone born in the King’s domains, but rather that decision by Lord Coke provided only a sufficient condition based on the common law for a natural born subject—no more defining it than Minor v. Happersett defines “natural born citizen” for Americans. I argued that a simple dictionary definition of “natural born” from the Oxford English Dictionary cleared up the matter both for common usage and Common Law usage. I’ll repeat that short definition here:
Having a specified position or character by birth; used esp. with subject.
I published my argument in “Farmer v. Framer” in 2012. What troubled me about that argument is that I had not seen anything like it from authority, and it sounded awfully like the kind of inexpert “independent research” that has gotten so many birthers in trouble, dictionary and all. While there is plenty of support for my conclusion (e.g. the Congressional Research Service report “Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement”), affirming the conclusion doesn’t prove the validity of the argument.
Today, re-plowing old ground, I found my authority, and surprisingly it was right there in the Supreme Court decision in US v. Wong:
Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below [underscored]:
“‘British subject’ means any person who owes permanent allegiance to the Crown. ‘Permanent’ allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes ‘temporary’ allegiance to the Crown. ‘Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.’ ‘Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.”
The exceptions afterwards mentioned by Mr. Dicey are only these two:
“1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person’s birth is in hostile occupation, is an alien.”
“2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.”
I realize that Dicey says “law” rather than “common law,” but in context, Dicey is defining terms at the start of his chapter on British Nationality, and then goes on to provide rules using the terms and the statutes supporting his rules. Here are the rules that follow (not quoted by the Supreme Court):
(A) ACQUISITION OF BRITISH NATIONALITY AT BIRTH (NATURAL-BORN BRITISH SUBJECTS).
Rule 22. Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions, is a natural-born British subject. …
Rule 23. – Subject to the exception hereinafter mentioned, any person
(1) whose father is born within the British dominions, or
(2) whose paternal grandfather is born within the British dominions,
is (though not born within the British dominions) a natural-born British subject.
Provided that no person is under this Rule a natural-born British subject whose father is not at the time of such person’s birth a natural-born British subject.
I think it is vitally important to note that when defining “natural born citizen” Dicey uses the word “means,” and when expressing who qualifies to meet the definition, he uses “is.” Let me summarize:
- “Natural born subject” means a subject at birth (chapter head definition)
- Someone who is born a subject under the common law is a natural born subject (Rule 22)
- Someone who is born a subject under statutory law is a natural born subject (Rule 23)
In the commentary (not cited here), Dicey affirms that the common law does not grant the status of natural born subject to those born outside the British dominions, but he does not employ it as a definition.
I have an authority, and I can now rest easier with assurance that I am not a crackpot.2
1Even here where Cockburn says that nationality by descent is not part of the common law, he does not say that “natural born subject” is limited to the common law conditions that make someone born in the realm a natural born subject.
2What is perhaps more troubling about my argument is that what I said in this article is essentially what I said in my article “Crackpotting natural born citizen” two years ago, this month. 😳