Discussions earlier this week of Senator Ted Cruz and the natural born citizen requirement (see here and here) seem to call for a clearer outline of the original meaning of the presidential eligibility clause. After further thought, below I sketch three possibilities.
To begin, a quick summary of key facts:
The eligibility clause (Article II, Section 1) provides that “[n]o person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” The question, of course, is what “natural born Citizen" means (and specifically, in Senator Cruz’s case, whether it includes a person born outside the United States to a U.S. citizen mother and a non-citizen father, where a U.S. statute provided in such a case for citizenship at birth).
The phrase “natural born Citizen” appears to derive from the common phrase “natural born subject” in English law (a status which among other things gave eligibility to certain offices, such as membership in parliament, that were not available to citizens naturalized after birth). As Blackstone explains (vol. I, Ch. 10), the “natural” in “natural born subject” traditionally referred to those who were subjects by the law of nature, as reflected in common law. And the ancient traditional rule was that only those born on English territory were natural born citizens:
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. .. The thing itself, or a substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.
Or as Blackstone says later, "And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances..." (As Blackstone further explained, there was a common-law exception for children of English ambassadors born abroad, because the ambassador, "though in a foreign country, owes not even a local allegiance to the prince to whom he is sent.")
But as Blackstone further describes, the rights of natural born subjects were extended by statute early on (under Edward III) to those born abroad of two English parents. Then, in the early eighteenth century, parliament made birth subjects of children born abroad with an English father. According to Blackstone, as a result these children “are now natural-born subjects themselves, to all intents and purposes, without exception.”
Finally, in 1790, the first U.S. Congress gave birth citizenship to children born abroad of two U.S. parents, whom the statute said would be “natural born citizens.”
From this sketch, I think there are three possibilities:
Version 1. The “natural” in “natural born” citizen/subject still meant in the eighteenth century (as it had much earlier) a citizen/subject by the law of nature (as opposed to a citizen/subject by statute). For people in the English tradition that would have meant people who were citizens under common law. That in turn meant only people born within the sovereign’s territory (and children of English ambassadors). In this view, the statutory expansions gave some children born abroad the same rights and duties as natural born subjects, but those children remained nonetheless only statutory subjects (since a statute could not alter the law of nature). Notably, only this version gives content to the word “natural” in “natural born.” So Ted Cruz loses.
Version 2. Although version (1) is the correct view of the traditional English rule, by the late eighteenth century parliament had expanded the traditional category of “natural born” to include children born abroad of English fathers. When the American founders thought of the “traditional” English rule, they actually thought of the eighteenth-century rule as stated in Blackstone, their chief legal authority. Hence “natural born” in 1788-89 America meant what it then meant in England: born in the territory, or born abroad to an English father. That explains the 1790 Act. But Ted Cruz still loses.
Version 3. Another way to look at it is that eighteenth-century English practice established the rule that parliament could expand the category of “natural born” by statute. That appears to be the power parliament claimed in making natural born subjects of children born abroad with English fathers. According to Blackstone, at least, the statute did not just give them the rights of natural born subjects; rather he said that by statute children born abroad “are” natural born subjects. In this view, parliament could have made natural born subjects of the children of English mothers. It chose not to – perhaps because the Roman/continental rule made citizenship follow the father’s status; perhaps because there simply weren’t very many English women (as opposed to men) living or traveling abroad and having children with foreigners. But in any event “natural born” had come to mean those children parliament made subjects at birth, whoever they were. Translated to U.S. constitutional terms, that would mean whomever Congress chooses (from time to time) to make citizens at birth are natural born. And Ted Cruz wins.
* * *
Two further points. First, the discussion is sometimes framed as a dichotomy between natural born (meaning a citizen at birth) and naturalized (meaning one who became a citizen later). That may be modern usage, but it’s not the eighteenth century meaning. Blackstone used “naturalized” to mean “made a citizen by statute,” whether at birth or otherwise. For example, he referred to the statute making subjects of some children born abroad as an act “for naturalizing the children of English parents born abroad.” That use carried over into the U.S. in the 1790 Act, which is called an act of naturalization (passed under Congress’ power to provide a uniform rule of naturalization), and continued at least at far forward as the Fourteenth Amendment – which says there are two ways to be a citizen: born in the U.S. or naturalized. So the question isn’t whether Ted Cruz is naturalized. He is – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen. Put this way, I find version #3 above the most plausible. Blackstone thought children naturalized at birth “are” natural born subjects, whereas people naturalized later had most but not all the rights of the natural born (including those naturalized at birth by statute). And notably, the principal rights those naturalized later did not have (but those naturalized at birth did have) were eligibility to certain high offices.
Second, much modern discussion relies on the excellent 2011 Congressional Research Service (CRS) study of the matter, treating it as largely settling the question. But Senator Cruz should read the report closely before he relies on it. As to original meaning, the report concludes (p. 25):
The overwhelming evidence of historical intent, general understandings, and common law principles underlying American jurisprudence thus indicate that the most reasonable interpretation of “natural born” citizens would include those who are considered U.S. citizens “at birth” or “by birth,” either by the operation of the strict “common law” of jus soli derived from English common law (physically born in the United States and subject to its jurisdiction, without reference to parentage or lineage), or under existing federal statutory law incorporating longstanding concepts of jus sanguinis, the law of descent, including those born abroad of U.S. citizen-parents.
But as Blackstone’s discussion shows, the “longstanding concepts of jus sanguinis” include only those born abroad to two citizen parents or (depending on how one defines “longstanding”) those born abroad to a citizen father. “Longstanding concepts of jus sanguinis” do not include those born abroad with just a citizen mother.
Here, though, I think the CRS report is wrong, or at least under-inclusive. Parliament’s extension of natural-born-subject status to certain children born abroad did not turn on “longstanding concepts of jus sanguinis.” Blackstone, at least, does not even mention this basis for the extension. Rather, he says, it was a policy decision “[t]o encourage also foreign commerce.” Thus eighteenth-century English practice stands not for the proposition that “natural born” combines traditional principles of jus soli and jus sanguinis (which might be problematic for Senator Cruz) but rather for the proposition that parliament could define by statute who was “natural born,” by saying who was a citizen at birth.
And so, again, Ted Cruz wins.