I and may others look to the old legal decisions for a definition of “natural born citizen.” The court cases, however, provide less help than one might hope for. As I was putting a pickle slice on my sandwich just now, I had a thought that I’m sharing in this essay.
Those early cases were not about who could be president, but who was a citizen. They note that the Constitution doesn’t say who is a citizen, but that it mentions the term in two contexts, the “natural born citizen” who is eligible to be president, and the naturalized citizen who is made so by act of Congress.
I had thought that the Constitution recognizes the citizenship of the natural born, but I think I had that backwards. It is the Constitution, in the presidential eligibility clause, that makes “natural born” Americans into citizens of the United States. If it were not for this provision of the Constitution, one would have to look to less authoritative sources to determine that “natural born” Americans are citizens at all.
It appears that under English Common Law, natural born subject means those who are subjects from birth1, and further that anyone born in the allegiance of the sovereign (whether child of alien or subject) qualifies as a natural born subject. Our courts recognize the English Common Law foundation of citizenship in the United States. The US Supreme Court, for example, in US v. Wong cited Mr. Justice Swayne in US v. Rhodes:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.
Congress under its power of naturalization creates other citizens at birth (natural born citizens) fulfilling the second constitutional reference. Birthers say that Congress cannot create new natural born citizens, but the Constitution explicitly gives them this power.