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03/28/2016

The Meaning of the Natural Born Citizen Clause
Einer Elhauge

[Editor's note:  for this guest post we welcome Einer Elhauge, the Carroll and Milton Petrie Professor of Law at Harvard Law School.]

Professor Mike Ramsey has generously invited me to respond to his and Andrew Hyman’s blog posts on my amicus brief explaining why Ted Cruz is not a natural born citizen eligible to be President.  (Or Vice-President, which may be more relevant given how the primaries are going.)

Let me first say that I think the articles by Professors Ramsey and Mary Brigid McManamon are the two most erudite articles so far published on the meaning of the natural born citizen clause.  My conclusions parallel Professor McManamon’s.   I also agree with 99% of Professor Ramsey’s article, but end up surprised when, having marched the reader to the one-yard line, he shrinks from the logical conclusion, like Pete Carroll deciding not to run Marshawn Lynch in from the one-yard line in the Super Bowl.

Professor Ramsey ultimately defends the interpretation that anyone born a citizen is a natural born citizen, even if they are born a citizen only because of a naturalization statute.  But as his article acknowledges, “If anyone born a U.S. citizen is eligible to the presidency, the word ‘natural’ in the eligibility clause seems superfluous. To give it meaning, there should be some ‘born’ citizens who are not ‘natural born.’”  Ramsey at 2.  Yet, surprisingly, his ultimate conclusion is that there are none. 

Professor Ramsey also acknowledges that “in general in eighteenth-century legal language, natural meant the opposite of ‘provided by statute.’ …  The most obvious meaning of ‘natural born Citizen’ thus is not a person who claims citizenship from a statute, but rather a person whose citizenship comes from the natural state of things….  In eighteenth-century legal language ‘natural’ meant arising from the nature of things – a usage reflected, for example, in natural law (as opposed to statutory law) and natural rights (as opposed to statutory rights).”  Id. at 2, 5-6.  Yet, surprisingly, his ultimate conclusion is that a person who gets citizenship at birth only because it is provided by statute is a natural born citizen.

In contrast, my interpretation is consistent with Ramsey’s two textual points because it does give “natural” some meaning that is non-statutory.  Namely, “natural” means a citizenship that arose under the natural law that was recognized at common law, rather than citizenship created by a “naturalization” statute.  At common law, a person was “natural born” only if they were either (1) born in national territory to a parent who was not serving a foreign nation as ambassador or soldier or (2) born abroad to parent who was serving the nation abroad as an ambassador or soldier.  John McCain, Barack Obama, and Marco Rubio were all clearly eligible under this common law standard.  But Ted Cruz falls within neither category and is thus not a natural born citizen.  He was automatically a citizen at birth only because a naturalization statute provides that the foreign-born children of certain U.S. citizens are citizens at birth.

My brief adds many other reasons to think the Framers meant “natural born” to incorporate the meaning at common law rather than under statute:

  1. On citizenship, the Constitution only gives Congress the power of “Naturalization.” To “naturalize” something necessarily means it was not otherwise “natural”.  The suffix “-ize” means “to render, make”.  You cannot sterilize someone who is already sterile, radicalize someone who is already radical, or legalize something that is already legal.  Likewise, you cannot naturalize someone who is already natural.
  2. The Fourteenth Amendment expressly distinguishes citizenship by birth in the U.S. from citizenship by naturalization. The Supreme Court explicitly concluded that persons who become citizens because of statutes “conferring citizenship upon foreign-born children of citizens” are “naturalized,” rather than citizens by birth under the Constitution.  Wong Kim Ark, 169 U.S. at 702-03.
  3. James Madison and early U.S. commentators indicated they understood natural born citizenship to follow its common law meaning.
  4. The Supreme Court stated that natural born citizenship tracks the common law meaning, at 655-65, rather than the statutory meaning, id. at 669-71.
  5. Cruz himself acknowledges that Black’s Law Dictionary consistently defined “natural born” as “born within the dominions” until 1990, when it “defin[ed] ‘natural born citizen’ for the first time to include ‘those born of citizens temporarily residing abroad.’”

Professor Ramsey nonetheless concludes that the Constitution incorporated British statutes, which extended “natural born” status to the foreign-born children of natural-born fathers.  Why?  Because the Framers were aware of those British statutes.  However, concluding that general awareness trumps all the above evidence that the Framers meant to incorporate the common law meaning hardly seems consistent with Professor Ramsey’s own conclusions that “An interpretation of the clause should … strive to find some meaning of the word natural” and that “giving ‘natural’ its ordinary legal meaning suggests the exact opposite of the conventional conclusion regarding citizenship derived from statutes.”  Ramsey at 5. 

Nor are the British statutes telling, for reasons detailed in my brief:

  1. Each British statute described itself as a “naturalization” statute, which is also how Blackstone described them, indicating they covered persons who were not “natural” born subjects.
  2. Each British statute used language (like “deemed adjudged and taken to be”) that indicated Parliament was treating the foreign-born children of subjects like “natural born subjects,” not concluding that they actually were natural born.
  3. This understanding is confirmed by the fact that other British statutes used the same type of language (“deemed, adjudged, and taken to be”) to treat various persons as “natural born subjects” based on post-birth activities, such as serving on British ships. Because these persons could not have been natural born subjects at birth, these statutes confirm that such language meant only that covered persons would be treated as natural born subjects, not that they were actually natural born.
  4. The British statutes treated foreign-born persons as natural born only if the father was natural born, which would not help Cruz because his father was not a U.S. citizen.

Contrary to Ramsey and me, Andrew Hyman argues “natural” did not refer to natural law.  He points out that, in the Ash and Johnson dictionaries, the definition for “natural” included “native” and the definitions for “native” included not only the primary definition of “One born in any place, an original inhabitant” but also the secondary definition of ‘Offspring.”  His argument has several problems:   

  1. He relies on definitions about the use of “natural” and “native” as a noun, but “natural” is plainly an adjective in “natural born citizen.”
  2. Even the noun definition of “natural” in the Johnson dictionary is “native; an original inhabitant”, clearly adopting the primary definition of native.
  3. The Constitution contrasts “natural born” with “naturalization,” and these dictionaries define “naturalization” as “The act of investing a foreigner with the privileges of a native subject.”
  4. Interpreting “natural born” to mean “offspring born” would make the word superfluous because all offspring are born.
  5. The key issue is the meaning of the phrase “natural born,” and interpreting it to mean “native born” cuts the other way because that phrase clearly meant born in the nation.
  6. Hyman’s interpretation would logically mean that all foreign-born offspring of citizens are “natural born” citizens, but the law clearly denies them citizenship unless it is provided by a naturalization statute. From 1802-1855, all foreign-born offspring of citizens were denied citizenship unless their father was a citizen before 1802 because federal statutes failed to naturalize them, and even today foreign-born children of citizens are denied citizenship unless their parents satisfy statutory residency requirements.

Others stress a 1790 Congressional statute that conferred citizenship on the foreign-born children of certain citizens, but my brief shows that:

  1. The 1790 statute aimed to change who was a citizen and thus affirmatively undermines the claim that 1790 Congressmen thought such persons were already natural born citizens under the Constitution.
  2. Nothing in the 1790 statute or legislative history suggests Congress thought it was changing (or could change) the constitutional meaning of natural born citizen.
  3. The 1790 statute described itself as a “naturalization” statute and stated only that such persons “shall be considered as natural born Citizens,” suggesting that Congress thought they were not natural born citizens but should be treated as such.
  4. In 1795, James Madison observed that Congress only had constitutional authority to naturalize “aliens” and got Congress to adopt his amendment taking the words “natural born” out of the 1790 statute. This confirms they thought such foreign-born children were natural aliens, not natural born citizens.
  5. Contemporaneous scholars stated that the 1790 and 1795 Acts meant that persons “naturalized according to these acts, are entitled to all the rights of natural-born citizens, except . . . they are forever incapable of being chosen to the office of president of the United States.”

My brief thus shows Ted Cruz is not a “natural born citizen” under either an originalist approach that considers only the text and contemporary usage or an approach that also considers legislative history, precedent, and purpose.