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02/15/2016

The Original Meaning of 'Natural Born', Revised
Michael Ramsey

I have posted a revised draft of The Original Meaning of "Natural Born" on SSRN.  In addition to cleaning up some typos and errant word choice and updating some footnotes, it principally responds to two criticisms of the prior draft.

One important criticism was that the draft did not adequately discuss eighteenth century British statutes that granted partial natural-born rights to classes of persons based on post-birth activities.  For example, a 1740 statute --surely known to the framers -- said that persons who lived seven years in the American colonies and took specified oaths of loyalty shall be "deemed, adjudged and taken to be natural born subjects" (statute of 13 Geo. II, c. 7).  There were a number of these, covering for example people who served two years on a British ship during wartime, people who served two years in the American regiment, and people who served two years on a British whaleship.  However, these statutes (despite their broad declaration of "natural born" status) did not actually give the full rights of natural born subjects because each of them had what Blackstone called a "disabling clause" stating that persons made subjects under these statutes could not serve in office or be granted land in Britain or Ireland.  The "disabling clause" came from the Act of Settlement (1700), which limited officeholding and land grants to persons born in the kingdom or born abroad of English parents.  In contrast, the statutes relating to the children of English parents born aboard did not have disabling clauses, presumably because the Act of Settlement did not require them.

I initially dismissed these statutes mostly in footnotes, on the ground that they didn't convey full natural born status and so weren't directly relevant (consistent with Blackstone's treatment: he discusses the two categories of statutes separately and only describes the children of English subjects as having natural born status).  I still think that's basically right, but I agree with the criticism that the draft needs to discuss them in detail, so now it does (pp. 21-23 and 36-37).

On further reflection, I think the statutes based on post-birth activity reinforce the draft's conclusions.  They confirm a British practice of extending officeholding eligibility to persons born abroad of English parents but not to persons made subjects (even nominally natural born subjects) based on post-birth activities.  That suggests that while Congress could confer eligibility on persons born to U.S. citizens by declaring them to be natural born citizens at birth, it couldn't go further and convey eligibility on persons who weren't born citizens -- a limit which is consistent with the purposes of the eligibility clause.

A second criticism was that the prior draft did not discuss the legislative history of the 1790 and 1795 naturalization statutes.  The revision expands the discussion a bit.  But, there's really not much more to say.  The treatment of children of U.S. citizens born abroad was mentioned only twice in the records of the 1790 debates (inconclusively) , and not at all in the records of the 1795 debates.  (I document this in more detail in the revisions, pp. 9-10).

One point on the 1795 debates: some commentators have pointed to a quote from Madison, in which he said that he "did not think Congress, by the Constitution, had any authority to readmit American citizens at all.  It was granted to them to admit aliens."  Madison said this in an entirely different context, however.  Congress was debating whether the limit the ability of former U.S. citizens who had renounced their citizenship to regain it through naturalization, and that is what Madison obviously was talking about in addressing the "authority to readmit American citizens."  The debate had nothing to do with Congress’ power to extend “natural born” status to children born abroad (who were not being "readmit[ted]." Madison did not explain the basis of his belief, so there is no way to determine whether he might also have perceived other limits on Congress’ naturalization power. (And in any event his reading of the Constitution on this point seems wrong: a former U.S. citizen, having become an alien, would seem eligible for naturalization to the same extent as any other alien.)

The main point of the revisions here, then, is to reaffirm the statement in the initial draft that the legislative history is unhelpful, despite some commentators' claims that it reveals something about Madison's views.

As always, I very much appreciate all of the comments and criticism I've received.