There are polar opposite views on what the phrase “natural born citizen” in the Constitution means. One pole is the legal community and the other the birthers. How can reasonable people come to such different opinions?
Obviously one answer is that the birther side isn’t being reasonable; however, there is a little more to it. The fact of the matter is that our country has not always been of one mind on citizenship, and that there have been periodic bouts of anti-immigration sentiment in the population, sentiment reflected in the statements of politicians and sometimes in the courts and occasionally in statutes (like the Chinese Exclusion Act). Like it or not, the Dred Scott decision was the law of the land until it was supplanted by the 14th Amendment, no matter how bizarre and racist its conclusions sound today.
I was digging through some bookmarks last week and re-discovered a 2006 Congressional Research Service report, “U.S. Citizenship of Persons Born in the United States to Alien Parents.” I found the report valuable in understanding the historical context. They wrote on page 4 (footnotes omitted):
Although the English common law at the time of the adoption of the Constitution considered a person born in the English dominions to alien parents to be an English citizen unless those alien parents fit into the exceptions described above, and although American law apparently generally accepted this position, there nevertheless appeared to be some uncertainty as to whether persons born in the United States to alien parents were, in fact, citizens of the United States. Some scholars ascribe this uncertainty to the desire of Americans to embrace both a “consensualist” doctrine of citizenship, by which a person and a government consent to be mutually obligated, and an “ascriptive” doctrine by which a person is ascribed citizenship by virtue of circumstances beyond his control, such as birth within a particular territory or birth to parents with a particular citizenship.
It is the general view of the legal community that this issue was put to rest by the US Supreme Court in the 1898 case of US v. Wong. But even the Wong decision was split 6-2.
Given that confirmation bias leads us to select those authorities and citations that confirm what we already believe, it should be no surprise that in the midst of a wealth of conflicted history, each side could find things to make the case that suits them. The fact that the birthers always lose in court should inform us on which side has the stronger argument.