With the Canadian-born Ted Cruz running for president, once again the question of what the obscure term in the US Constitution, “natural born citizen,” means enters the national debate. Can only persons born in the country be president, or does it mean someone who is a citizen from their birth?
I think that some writers on the natural born citizenship clause ignore the elephant in the room: the significance of the fact that the Constitution not define “natural born citizen.” Here is one of many citations I could offer, this from the Supreme Court’s decision in Minor v. Happersett:
The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere …
The Minor Court went on to look for a definition in the English Common Law, “the nomenclature of which the framers were familiar.” Was it really the intent of the Framers to leave the question of birthright citizenship to the Common Law, indicating such by a mere hint left in a clause on a completely different subject? If it was then they did a rather poor job of things, forcing later courts to attempt to tease out what they were thinking from text not on topic, leaving room for the infamous Dred Scott decision that contributed to the US Civil War, requiring the extreme remedy of a constitutional amendment to fix and after over 200 years, leaving some uncertain as to who is eligible to be come president. Is it not reasonable that if the Framers intended a definition of birthright citizenship to be in the Constitution, then they would have said something like: “The Citizens of the United States shall be….” I do not think such was their intent, and neither did James Madison, and in support of that idea I cite the Smith controversy.
Congressman Smith was elected US House of Representatives from South Carolina in the first federal election under the new Constitution in 1788, and his eligibility was challenged based on the claim that he had not been a citizen of the United States the requisite 7 years (Smith, born in Charleston, was overseas during the Revolutionary War). When deciding the Smith question, Congress found that there was an ambiguity as to when Smith became a citizen. Here’s what Madison said speaking before the House 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 …
Following, Madison states the general principle: “it is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage….” What Madison tells us is that citizenship in the United States was not defined in the Constitution, was not uniform across all the States, and that sometimes one rule applied, and sometimes another. Indeed, Madison faced the same problem that the Minor Court did: citizenship is not defined in the Constitution. When faced with the problem of defining birthright citizenship, the Supreme Court has repeatedly cited the Constitution’s presidential eligibility clause and resorted to the English Common Law. The principle author of the Constitution (an “originalist” if ever there were one!) did not, but rather started with state law, and then resorted to general principles broader than the Common Law (under the English Common Law, parentage is not a criterion of allegiance).
If indeed citizenship at the time of the founding was defined by state law—sometimes one way and sometimes another1–then it seems to me to be a mistake to assume that the Framers intended any hard and fast definition of “natural born citizen” to apply to presidential eligibility.
Just as Madison did not resort to the English Common Law to solve the Smith eligibility question, I do not think we should resort to it to solve the presidential eligibility question. I keep coming back to the point that the only dictionary definition of “natural born” in the Oxford English Dictionary is:
Having a specified position or character by birth; used esp. with subject.
It seems to me that the Framers intended, as the historian George Bancroft surmises2, that presidential eligibility be limited to someone who had never been a foreigner3, following the progression of 7 years citizenship for the House, 9 years for the Senate, and one’s entire life for president. The plain text of the Constitution says that the Framers originally intended that the president must have the position or character of citizen by birth, however defined by the states. The criteria of who had that position or character was left to the states, some of which granted birthright citizenship to the children of their citizens born outside the country.
Following the passage of the 14th Amendment, citizenship in the United States is defined by the Amendment and federal statutes. It is a reasonable transition, not violating original intent, that these current statues govern who is a citizen from birth, and hence a natural-born citizen.
LAWS OF VIRGINIA, MAY 1779−−3d OF COMMONWEALTH. CHAP. LV.
An act declaring who shall be deemed citizens of this commonwealth.
BE it enacted by the General Assembly, That all white persons born within the territory of this commonwealth, and all who have resided therein two years next before the passing of this act; and all who shall hereafter migrate into the same, other than alien enemies, and shall before any court of record, give satisfactory proof by their own oath or affirmation that they intend to reside therein; and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father if living, or otherwise whose mother was a citizen at the time of their birth, or who migrate hither, their father if living, or otherwise their mother, becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth. …
One question on the qualifications of the president was among the last to be decided. On the twenty-second of August the committee of detail, fixing the requisite age of the president at thirty-five, on their own motion and for the first time required that the president should be a citizen of the United States, and should have been an inhabitant of them for twenty-one years. The idea then arose that no number of years could properly prepare a foreigner for the office of president; 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, the committee of states who were charged with all unfinished business proposed, on the fourth of September, that “no person except a natural-born citizen, or a citizen of the United States at the of the adoption of this constitution, should be eligible to the office of president,” and for the foreign-born proposed a reduction of the requisite years of residence to fourteen. On the seventh of September, the modification, with the restriction as to the age of the president, was unanimously adopted.
The underlined portion was cited in Justice Fuller’s dissent in US v. Wong. Bancroft personally interviewed James Madison and had access to his journals, notes and letters.
3This is in line with what future Chief Justice John Jay wrote in his famous letter to Washington that may have introduced the term “natural born citizen” into the deliberations on the Constitution. The rationale Jay gave was to check the admission of “Foreigners” into the administration.