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01/21/2018

Thomas H. Lee: Natural Born Citizen
Michael Ramsey

Thomas H. Lee (Fordham University School of Law) has posted Natural Born Citizen (American University Law Review, Vol. 67, No. 327, 2017) on SSRN.  Here is the abstract:

Article II of the U.S. Constitution states that a person must be a "natural born Citizen " to be eligible to be President. This Article surveys relevant evidence and explains what the phrase likely meant when the Constitution was adopted between 1787 and 1789. The phrase at the time encompassed three categories of persons: (1) persons born within the United States; (2) persons born outside of the United States to U.S. citizens in government service; and (3) persons born outside of the United States to U.S. citizen fathers who had resided in the United States but went abroad temporarily for a private purpose, like merchants who traveled on business. This definition corresponded with contemporaneous English law understandings of "natural born subjects," the natural law birthright principles of jus soli (the law of soil) and jus sanguinis (the law of blood or parentage), and the law of nations-the key jurisprudential sources consulted by Americans on matters of citizenship in the late eighteenth-century world order. This novel interpretation of the original meaning of "natural born Citizen" departs from the conventional wisdom that the phrase refers to a person who is a citizen under the U.S. naturalization statutes in effect at the person's birth, a view recently espoused by two former Solicitors General of the United States, Paul Clement and Neal Katyal. My interpretation also differs from the leading alternative view of the original meaning of the phrase, namely that it refers to persons born in the United States or outside of the United States to U.S. officials only. A brief conclusion explores the implications of the recovered original meaning of "natural born Citizen "for presidential eligibility today.

This is an outstanding paper.   Professor Lee and I have had many conversations on this topic, and while our views of the relevant events are fairly consistent our conclusions are somewart different.  My counterpoint is here: The Original Meaning of 'Natural Born'.