From time to time, pundits and legal scholars from all areas weigh in on what constitutes a “natural born citizen,” which is a required by the Constitution for the office of President. Those who opine strongly on this matter typically do so in order to bolster the case for their own pet candidate, or to attack someone else’s. Despite producing varying claims concerning what this phrase means, all of them are equally insistent they have the answer.
By: David Benner
This article first appeared at 10thAmendmentCenter
Frustratingly, this is a more complicated matter. Many scholars who study the United States Constitution in earnest will readily admit that the terminology “natural born citizen” exemplifies one of the most confounding aspects of the document. Concerning almost other every constitutional issue, there are supporting explanations, details, and debates which shed much light on the original meanings of each term. When it comes to this phraseology, however, there are very few recorded specifics.
However, the founders were separated by only 100 years from England’s Glorious Revolution, which was a calculated effort Parliament partook to remove a king from power who they perceived to be enacting a French-based state in England. Apprehending the implementation of this type of foreign influence and authority over the United States, those who wrote the Constitution wanted to impose a mechanism to impede this tendency.
During the Philadelphia Convention, John Jay wrote a letter to George Washington to expound upon this:
“Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen.”[emphasis added]
The Philadelphia Convention Committee on Detail originally drafted a proposal that the President must be merely a resident and citizen for 21 years, but the committee purposefully changed “citizen” to “natural born citizen” without a written record explaining the change.
Many insist that “natural born citizen,” as it is used in the Constitution as a prerequisite for the office of the presidency, meant that the person was born to people who were born within the country to citizen parents. Commonly, their chief basis for this explanation is Emmerich de Vattel’s The Law of Nations. In an English translation of the work, the term was defined this way:
“The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”
What muddles this reasoning is that the original 1789 English translation of The Law of Nations was not available until two years after the Philadelphia Convention, and a year after the ninth state ratified the document. Therefore, it seems almost impossible for it to have been the definitive basis for the wording used in the United States Constitution. Additionally, the original French passage makes unclear whether the plural verbiage applies to the citizens or to the parents. Therefore, it’s unclear whether one of the parents was required to be a citizen or both under this definition.
Some others have opined that the terminology “natural born citizen” was derived from the English common law term “natural-born subjects.” In the most prominent treatise on the English legal system, Commentaries on the Laws of England, William Blackstone defined the term this way:
“Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.”
Also, being born outside of British territory to a father who was a subject would also enable someone to be considered as a “natural-born subject:”
“But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”
Additionally, Blackstone clarified that the children of aliens born in England were natural-born subjects as well, which contrasted with the French system:
“The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.”
If one believes the founders who wrote the Constitution used this common law explanation as the basis, this would make any person born within the United States, or any person born within United States territories, even to alien parents, or those born outside of the United States to an American father, natural born citizens.
This would raise some other questions, as the conferral of birthright citizenship was determined on a state by state basis prior to 1868. Considering this, Blackstone’s explanation translated to the United States would have produced some individuals that were considered natural born citizens, but not citizens of their state. Also, there isn’t any direct corroboration from the accounts of the attendees of the Philadelphia Convention, or committee members who drafted this text, which suggests they based their own wording on Blackstone’s common law definition.
The Naturalization Act of 1790 complicated the issue even farther:
“The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”
This seemed to grant some leniency to the term “natural born,” and clarify that a particular class of individuals would be considered as “natural born citizens.” In this way, it does not contradict Blackstone’s common law explanation. Still, it does not resolve the issue or define the terminology altogether, and raises the important question as to whether those who drafted the Constitution intended for Congress to define and redefine the term over the course of time. Since the power to constitute or alter the terminology of “natural born citizenship” is not listed among Congress’ enumerated powers, this does not seem to be the case.
Also, one cannot guarantee this act’s constitutionality on the basis of its passage through the First Congress any more than they could guarantee the constitutionality of the Funding Act of 1790 or the Bank Bill of 1791. After all, both of these early federal laws were highly scrutinized and controversial on the basis of perceived unconstitutionality. It is impossible to point to a particular legislative act as the irrefutable explanation of Constitution prose that predated it.
Due to the contrasting definitions for which there is no supporting writing from the founders, I do not think I could honestly answer this question definitively. Unless farther validation is produced in the form of undiscovered writings from the ratification time period, it is unclear which source was the basis for “natural born citizen” in the Constitution. Whether the founders predicated their determination on the works of Vattel, Blackstone, or an alternative explanation cannot be determined with absolute certainty. The extent to which other scholars will admit this, in my eyes, is evidence of their intellectual honesty.