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New article suggests that the Framers didn’t know for sure what “natural born citizen” meant either

A law professor and a historian look at history and conclude that the Framers of the Constitution weren’t all that concerned with precise definitions of citizenship and that it is a mistake to assume that a consensus definition of “natural born citizen” existed then, as it would be to say one exists today on the Internet. Nathan Perl-Rosenthal, assistant professor of history at the University of Southern California, and Sam Erman, assistant professor of law at the USC Gould School of Law write in a piece at History News Network:

These historical arguments … share two underlying premises: that there was a single dominant meaning of “natural born” in early U.S. law, and that we can discern it by reading the constitutional text in context.  Unfortunately, two things that we know about the history of the early American republic make these interpretive assumptions entirely unwarranted in the case of citizenship law.

You can find out what those two things are by reading their article, “Ted Cruz: Is He or Isn’t He Eligible to be President?”.

They assert this interesting idea:

… we should admit that there were two equally persuasive and authoritative versions of the clause’s meaning in the eighteenth century itself.  Since neither side won the argument about what it meant in the eighteenth century, the final decision rests with us.

If you are keeping score on scholars for Cruz, chalk up two more in the “eligible” column.


On another topic, I was chatting with one of my buddies who is an attorney this afternoon. He went to Harvard and had Laurence Tribe as one of his teachers. (He calls him “Larry.”) He was a former federal prosecutor and now is a legal researcher. I asked him of Cruz was eligible, and he replied, “unfortunately, yes.”

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29 Responses to New article suggests that the Framers didn’t know for sure what “natural born citizen” meant either

  1. avatar
    Sudoku February 4, 2016 at 7:02 pm #

    My spouse also went to HLS and had ‘Larry’ for Constitutional Law. When I brought up the subject of Cruz’ eligibility, his response was ‘Don’t you have to be born in the US?”

  2. avatar
    Pete February 4, 2016 at 11:20 pm #

    A law professor and a historian look at history and conclude that the Framers of the Constitution weren’t all that concerned with precise definitions of citizenship and that it is a mistake to assume that a consensus definition of “natural born citizen” existed then

    That seems probably to me, in the sense that if you had asked people back then, you would get some of the same uncertainties as we have now.

    On the other hand, if you were to have a second meeting of those who had been present at the Constitutional Convention, and if you were to ask them to sit down and hash out exactly what the clause means, I think that, after a certain amount of discussion and perhaps a bit of argument, they would probably decide that anyone born a citizen of the United States (which includes all born citizens of each of the Colonies that became States) would meet the definition.

    If you were to further frame the question in the context of today’s USA, in which States fulfill a role that is significantly diminished from the late 1700s, then I think that conclusion would be even more likely.

  3. avatar
    Lupin February 5, 2016 at 2:48 am #

    We never tackle the elephant-in-the-room which is that, whatever the term meant in the late 1700s, it can’t mean the same in 2016.

    If you ask a French lawyer what a “Naturel” was in 1800, he will clearly tell you that it was a person whose father was French.

    Note however that even then, a person whose Mother was French, or whose parents were both foreigners but had been born on French soil, could elect to become French upon his majority, and that was not construed as a “naturalization” (it wasn’t subject to the same legal process; it as more like an automatic fast track) and there was nothing in the Law that would have granted him/her fewer rights than any other French citizen.

    But returning to the main point: the notion of “Naturel” evolved, starting in 1863, when the rights of the Mother started to creep in, and so forth until full equality of the sexes in this matter was finally recognized.

    So my point is, applying an 1800 definition to a 2015 case is utterly ridiculous; and if one is to apply the modern-day Vattelist/Napoleonic definition, then Mr Cruz is indeed a Naturel through his mother.

  4. avatar
    Rimwalker February 5, 2016 at 7:11 am #

    I think we look at the framers wrong. They weren’t trying to determine who could serve as president, they were trying to specify who could not. The constitution is much more specific on disqualifying metrics.

  5. avatar
    BLOG LIES--SHUT IT DOWN February 5, 2016 at 10:16 am #

    There comes a time when a so called Christian blogger has to reconcie his evil ways to come to a conclusion that his lawyer friend lacks any common sense whatsoever with regard to the NBC issue. Obviously the most ignorant people in the NBC universe provide stupid comments, that are posted on this blog, for common sense people to laugh at.

    Here are some facts that the tunnel visioned and ignorant commenters choose to ignore when making ignorant comments concerning the NBC issue.

    CRUZ’s LAW PROFESSOR TRIBE COMMENT ON DEVIOUS LYING CRUZ.
    _____________________________________________________________
    “To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and 90s required that someone actually be born on U.S. soil to be a ‘natural born’ citizen,” Tribe wrote.
    ______________________________________________________________

    http://www.cnn.com/2016/01/12/politics/laurence-tribe-ted-cruz-birther-argument/

  6. avatar
    Sluffy1 February 5, 2016 at 11:34 am #

    I have to say if that is the case, then “the Framers of the Constitution weren’t all that concerned with precise definitions of” Militia either … but why quibble the 2nd too?

  7. avatar
    Rickey February 5, 2016 at 12:01 pm #

    Pete:

    On the other hand, if you were to have a second meeting of those who had been present at the Constitutional Convention, and if you were to ask them to sit down and hash out exactly what the clause means, I think that, after a certain amount of discussion and perhaps a bit of argument, they would probably decide that anyone born a citizen of the United States (which includes all born citizens of each of the Colonies that became States) would meet the definition.

    That is entirely possible. It may well be that when framing the Constitution the Founders never gave any thought to the citizenship of a child born abroad to an American, which undoubtedly was a rare occurrence in those days.

  8. avatar
    Scientist February 5, 2016 at 1:08 pm #

    I’m not a lawyer. I don’t even play one on TV. But I have worked with quite a few lawyers drafting contracts, patent applications, etc. My minimal expectation would be clarity – that if they put in a word or phrase its meaning would be clear-and forethought-that they anticipate possible outcomes and specify how they will be handled. The natural born citizen clause fails those requirements.

    Whether they meant: 1. Born in the USA; 2. Born a citizen; 3. Not a dual citizen or whatever else one might dream of, they had an obligation to say so unambiguously. In response, some have said: “Natural born citizen is/was a legal term of art whose meaning was well-established.” The fact that we are having this discussion indicates otherwise, certainly today, and very likely back then.

    Given this and the fact the language is there, the only reasonable thing to do is take the least restrictive definition possible and leave the maximum discretion to the voters.

  9. avatar
    Reality Check February 5, 2016 at 1:35 pm #

    I agree.

    A good point the authors made was that in the early days after Independence and even after the Constitution people considered themselves primarily citizens of the state where they resided and national citizenship was an afterthought.

    I am reminded of a line in Ken Burns series on the Civil War in which he said that before the Civil War people used the phrase “the United States are” but after the war would say “the United States is“. The full meaning of US national citizenship wasn’t really cemented until after the Civil War with the ratification of the 14th Amendment. Even then it took cases like Wong Kim Ark to prevent exclusion of certain minorities on racial and ethnic bases.

    Defining any citizen at birth makes since in the light of the state of travel and mobility in the 21st century and the principles of equality and inclusion.

    Pete:
    A law professor and a historian look at history and conclude that the Framers of the Constitution weren’t all that concerned with precise definitions of citizenship and that it is a mistake to assume that a consensus definition of “natural born citizen” existed then

    That seems probably to me, in the sense that if you had asked people back then, you would get some of the same uncertainties as we have now.

    On the other hand, if you were to have a second meeting of those who had been present at the Constitutional Convention, and if you were to ask them to sit down and hash out exactly what the clause means, I think that, after a certain amount of discussion and perhaps a bit of argument, they would probably decide that anyone born a citizen of the United States (which includes all born citizens of each of the Colonies that became States) would meet the definition.

    If you were to further frame the question in the context of today’s USA, in which States fulfill a role that is significantly diminished from the late 1700s, then I think that conclusion would be even more likely.

    Pete:
    A law professor and a historian look at history and conclude that the Framers of the Constitution weren’t all that concerned with precise definitions of citizenship and that it is a mistake to assume that a consensus definition of “natural born citizen” existed then

    That seems probably to me, in the sense that if you had asked people back then, you would get some of the same uncertainties as we have now.

    On the other hand, if you were to have a second meeting of those who had been present at the Constitutional Convention, and if you were to ask them to sit down and hash out exactly what the clause means, I think that, after a certain amount of discussion and perhaps a bit of argument, they would probably decide that anyone born a citizen of the United States (which includes all born citizens of each of the Colonies that became States) would meet the definition.

    If you were to further frame the question in the context of today’s USA, in which States fulfill a role that is significantly diminished from the late 1700s, then I think that conclusion would be even more likely.

  10. avatar
    Daniel February 5, 2016 at 2:11 pm #

    Sort of puts holes in the Birthers contention that the Framers had a very specific purpose the the NBC requirement, and where absolutely precise about what it meant because it was designed specifically to prevent……

    But somehow the framers forgot to specify what their precise meaning was…. AND what it was supposed to prevent.

  11. avatar
    Pete February 5, 2016 at 2:32 pm #

    Lupin: We never tackle the elephant-in-the-room which is that, whatever the term meant in the late 1700s, it can’t mean the same in 2016.

    To a limited degree, I would say the same.

    But since I think it meant “born a citizen,” then I would say it means the same today as it did in 1787.

    The criteria for exactly WHO is born a citizen may have changed, but in my view, the essential definition – born a citizen – has not.

  12. avatar
    Scientist February 5, 2016 at 3:39 pm #

    Daniel: Sort of puts holes in the Birthers contention that the Framers had a very specific purpose the the NBC requirement, and where absolutely precise about what it meant because it was designed specifically to prevent……

    But somehow the framers forgot to specify what their precise meaning was…. AND what it was supposed to prevent.

    But, our pal Kenley Noltensmeier has Hamilton’s notes and the transcripts of debates that the Convention had over the NBC clause. Oh, I know, the scholars all say there was no discussion, but Kenley found them behind a painting he bought at a yard sale. And they definitely, clearly said 2 citizen parents. Kenley assures me of that and he wouldn’t lie, would he?

  13. avatar
    Dr. Conspiracy February 5, 2016 at 5:19 pm #

    I would seem to this observer that anyone who quoted Tribe without also noting that Tribe himself thinks Cruz is eligible, is being dishonest and attempting to mislead folks. In fact. Also someone who would chide me for not saying something THAT I ALREADY SAID, shows a reckless disregard for the truth. Here is Tribe’s comment in an earlier article.

    http://www.obamaconspiracy.org/2016/01/authorities-wade-in-on-cruz-eligibility/

    BLOG LIES--SHUT IT DOWN:

    There comes a time when a so called Christian blogger has to reconcie (sic) his evil ways …

    “To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and 90s required that someone actually be born on U.S. soil to be a ‘natural born’ citizen,” Tribe wrote.

  14. avatar
    CRJ February 5, 2016 at 8:32 pm #

    Dr. Conspiracy: “To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and 90s required that someone actually be born on U.S. soil to be a ‘natural born’ citizen,” Tribe wrote.

    The fact anyone considers Cruz Eligible merely places a high regard in their belief to the [ nurture ] debate in the paradigm of PARENTS.

    The trouble then for the Sqeemished Mash they call Brains is on their other hand is Jurisdiction of the Law of the Land at the TIME of birth that makes Claim on an alegiance of, and for defense.

    Does the 14th Amendment create the necessity of defense by virtue of soil, or can the Parents of such Canadian Citizenry hold fast to their conferred citizenship upon their child?

    When you start saying [ soil ] overrides [ Parents ] and/or [ Parents ] over ride [ Soil ] you find yourself cluster-bombed by the gas of other scholars you call colleagues that show up once a year to the same barbecue skewering everyone’s chicken tender and salivating over the sauces of Nature v. Nurture .

    As if that argument couldn’t be further complicated, let’s fist fight about exactly when the woman and children stopped taking a father’s Sir name and started wearing pocadotted leotards and voting to make father’s and mother’s rights as individuals separate spheres of influence on the nurturing side and who out-do’s who in the consideration of conferred Citizenship?

    Mothers always win in Court right? You’ve heard that song, “She got the Gold Mine, I got the shaft. Well, they split it right down the middle and she got the better half”?

    So despite the familia name, Father’s are disposable razors that should be trashed, covered up, and held as toxic waste if they don’t provide access to the Kingdom the mother sees for her child, which can change very easily with the guy she decides to wed for the evening and divorce again in the morning ?

    There be nothing so transient as a woman’s feelings. To say they are like the tides coming and going is not far off and for certain hell knows no fury like a woman’s scorn. Ask Bill about how long the scorn has lasted, and cover your eyes at how much money Hillary has spent on Polling?

    The more we talk about this the more sense in the wisdom of [born in the U.S. to Citizen Parents] makes for the accounting of both nature and nurture as well respect for each Parent in the order of our national security and as a positive incentive to keep the American Dream at Home alive.

    Those wishing the mothers receive the better half of [conferred] citizenship do dishonor the father.

    Deuteronomy 5:16 clearly says honor thy father and thy mother.. ( God does mention father first) and ties the blessings of the Land which he gives us as the importance of [Place] which totally explains why Obama in the Oval office has cursed our national debt up 10 Trillion in 7 years.

    To those who say it doesn’t matter goes the dunce- cap. You can sit on the stool in front of the class with the tin foil Topped cylinder you got for a brain and recite your stupidness over and over, [Leadership does NOT matter] while the rest of us have a good chuckle.

    Of course those who don’t believe in God or the 10 Commandments are going to kill you, take your wife, kill your kids, and take your property anyway. Question is, if they are, why listen to them?

    You know, it’s kind of interesting God ties Parents and Place to the blessings of Nature and defines [ natural born Citizen] for us, if we have the good sense to SEE.

  15. avatar
    John Reilly February 6, 2016 at 1:53 am #

    CRJ: Of course those who don’t believe in God or the 10 Commandments are going to kill you, take your wife, kill your kids, and take your property anyway. Question is, if they are, why listen to them?

    An interesting comment from a convicted terrorist who threatened to murder 3,000 church goers and has relentlessly lied about it. There are Ten Commandments, including the thou shalt not murder and that shalt not bear false witness. You don’t get a passing grade for following 8 of 10.

  16. avatar
    Pete February 6, 2016 at 5:00 am #

    Scientist: But, our pal Kenley Noltensmeier has Hamilton’s notes and the transcripts of debates that the Convention had over the NBC clause. Oh, I know, the scholars all say there was no discussion, but Kenley found them behind a painting he bought at a yard sale.

    I wasn’t going to reveal this, but let’s just call it a sneak peek for my friends here at OCT.

    I know a man who purchased an old piece of furniture in New Jersey, and stuck in a crevice was a handwritten document that appears to be Abraham Baldwin’s personal notes of the debate regarding the natural born citizen clause. I’m still having it verified, but I’m confident enough of its authenticity to release the relevant part of the discussion here.

    The meeting was held the evening of September 3, at the City Tavern, over dinner. The most relevant excerpts of Baldwin’s notes (which are quite detailed) follow:

    Mr. MADISON: In regard to the Presidential qualification. I have here a letter, entrusted me by General Washington, from our good friend John Jay.

    Mr. SHERMAN: Your good friend.

    Mr. MADISON: I think it can be said that Mr. Jay is a good friend of us all. Permit me, Sir, to read his suggestion tendered to the General. (Reads letter). I can but agree with the sentiment, and think we ought apply it to the qualifications for President.

    Mr. MORRIS: Before we discuss the “natural born” part, I propose we should say the President ought to be a Citizen of the United States. Meaning the union of the several States. And of course, if a man is a Citizen of any one State, then he is a Citizen of the whole.

    Mr. BALDWIN: Or woman.

    Mr. MORRIS: Or what?

    Mr. BALDWIN: Or woman. The Committee of Detail has given us a proposal which says “he shall be of the age of thirty-five years, and a Citizen.” I personally think we should leave any gender-specific pronouns out of the clause and simply say “Person.” Gentlemen, we are writing for the ages. It might happen one day that the People should find it desirable to elect some woman as President. Although I imagine not in our lifetimes. Certainly not in our lifetimes.

    Mr. CARROLL: Not in our lifetimes, indeed. Nor in any other, I should expect. A woman as President? I suppose next you’ll be telling me you fancy the voters might one day elect a Negro.

    Mr. MADISON: If he – or perhaps she – meets the other qualifications, then why not? In a couple hundred years, after slavery is done, and there is genuinely equality for all, it might be accomplished.

    Mr. DICKINSON: I am entirely in favor of using the word “Person.”

    Mr. KING: I think they’ve forgotten my pudding.

    Mr. GILMAN: I shall seek out the young woman who served us the mutton.

    Mr. KING: I’ll bet you will.

    Mr. DICKINSON: She’s taken. I know the family well.

    Mr. GILMAN: Taken as in married?

    Mr. DICKINSON: No, as in engaged. A fortnight ago.

    Mr. GILMAN: Then pray tell me her name. For engagements are meant to be be broken.

    Mr. DICKINSON: And you would marry her, and take her back to New Hampshire? Or are your intentions less honorable?

    Mr. GILMAN: To New Hampshire if the occasion should suit.

    Mr. DICKINSON: Then her name is Emily, but her friends call her Em.

    Mr. GILMAN: I shall return with your pudding, Sir. Forthwith.

    Mr. KING: Don’t forget.

    Mr. BALDWIN: Perhaps young Em will one day be President.

    Mr. KING: Not if she can’t manage a pudding.

    Mr. MADISON: So I think we can agree on the “Person” part. Now as to the “natural born” part –

    Mr. BUTLER: Do you realize we’ve been at this for more than three months? Since May, to be precise. It’s a blasted business, sitting on one’s arse all day in the d*mned heat and listening to Gouvernor here make speeches.

    Mr. MADISON: Yes, and we are in the final details. So if we can focus our energies, we may complete the task in short –

    Mr. BUTLER: I for one am ready to focus my energies on the “tavern” part of this tavern experience. If I could get another pint…

    Mr. MORRIS: Hear, hear. Without consideration of Pierce’s intolerance regarding my eloquence, of which I am justly proud, upon that point I think we can agree.

    Mr. DICKINSON: Just put down “natural born Citizen.”

    Mr. MADISON: “No Person except a Natural born Citizen.” Any objections? Anyone?

    Mr. CARROLL: What’s next? Minimum age? Years of residency?

    Mr. KING: If ever young Gilman returns with my promised pudding – which I deem most unlikely – I’ll treat you gentlemen to a round.

  17. avatar
    Rickey February 6, 2016 at 1:23 pm #

    I believe that CRJ may have just told us more about his women problems than he intended.

  18. avatar
    Rickey February 6, 2016 at 1:36 pm #

    Dr. Conspiracy:
    I would seem to this observer that anyone who quoted Tribe without also noting that Tribe himself thinks Cruz is eligible, is being dishonest and attempting to mislead folks. In fact. Also someone who would chide me for not saying something THAT I ALREADY SAID, shows a reckless disregard for the truth.

    Yes, Tribe was just pointing out the irony that originalists, the kind of judges Cruz claims to prefer, would likely find him to be ineligible.

  19. avatar
    Woodrowfan February 6, 2016 at 1:59 pm #

    am reminded of a line in Ken Burns series on the Civil War in which he said that before the Civil War people used the phrase “the United States are” but after the war would say “the United States is“.

    except that’s not actually true. It sounds nice, but “is” was commonly used for the US well before The Late Unpleasantness.

  20. avatar
    Woodrowfan February 6, 2016 at 2:01 pm #

    Rickey:
    I believe that CRJ may have just told us more about his women problems than he intended.

    I just skip over his posts as well as Nancy’s. They’re both clearly mentally ill/ I just feel sorry for them.

  21. avatar
    Daniel February 6, 2016 at 2:33 pm #

    //Deuteronomy 5:16 clearly says//

    You really have to laugh when people like CRJ appeal to the Bible.

  22. avatar
    Learn To Read February 6, 2016 at 2:44 pm #

    Post explicitly states Cruz not qualified under the defined condition, Why are you not understanding the text below? Just asking!

    “To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and 90s required that someone actually be born on U.S. soil to be a ‘natural born’ citizen,” Tribe wrote.

    Are you believing that the founders had little to no interest in protecting the new nation from betrayers of this new nation, and specifically the office of the Commander in Chief of the new nation’s military?

    What explicit authority provides Cruz with his manufactured legitimacy to be a candidate for Potus? Is the authority statutes made by congress or the Founding Fathers?

  23. avatar
    Dr. Conspiracy February 6, 2016 at 3:44 pm #

    The problem is that Tribe considers Cruz eligible. Tribe ALSO wrote”

    “… the kind of judge I admire and Cruz abhors is a “living constitutionalist,” one who believes that the Constitution’s meaning evolves with the perceived needs of the time and longstanding practice. To that kind of judge, Cruz would be eligible to serve because it no longer makes sense to be bound by the narrow historical definition that would disqualify him.”

    If you want to post on this blog, pick a user name and stick to it. Otherwise I will delete any future comments.

    Learn To Read: Post explicitly states Cruz not qualified under the defined condition, Why are you not understanding the text below? Just asking!

    “To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and 90s required that someone actually be born on U.S. soil to be a ‘natural born’ citizen,” Tribe wrote.

  24. avatar
    Pete February 6, 2016 at 7:03 pm #

    Agreed. Tribe himself considers Cruz eligible.

    But I thought when I read Tribe’s article that it was a bad argument. I didn’t get it. I was surprised that Tribe would maintain that an originalist view of the Constitution means Cruz is ineligible. It doesn’t.

  25. avatar
    Keith February 6, 2016 at 8:36 pm #

    Pete:
    Agreed. Tribe himself considers Cruz eligible.

    But I thought when I read Tribe’s article that it was a bad argument. I didn’t get it. I was surprised that Tribe would maintain that an originalist view of the Constitution means Cruz is ineligible. It doesn’t.

    That is not what Tribe is saying either, in my opinion. He is saying that originalist Judges, the kind that Cruz likes (and Tribe doesn’t), would find Cruz ineligible.

    In other words, ‘originalist’ Judges, in Tribe’s opinion, don’t know any more about ‘original’ intent than anyone else; they just apply what they THINK was the original intent because it works for their world view (just as what we think about the framers thoughts on eligibility fit with our world view).

  26. avatar
    Scientist February 6, 2016 at 9:10 pm #

    Pete: Agre