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03/29/2018

One More Thing on Natural Born Citizens
Michael Ramsey

John Vlahoplus, who has done much valuable work on the natural born citizen clause, recently called my attention to an interesting case from 1824, Ex parte Dupont, 1 Harp. Ch. (S.C.) 5, 15-16.  (This is the lower court decision in the case that became Shanks v. Dupont, also relevant to the natural born citizen issue but in a more tangential way).

People who have followed this debate closely will recall that there's a question whether children born abroad to U.S. citizen mothers and non-citizen father are "natural born citizens" under the 1790 Naturalization Act.  (The question is whether the phrase "the children of citizens of the United States" requires a citizen father).  Paul Clement and Neal Katyal, in a Harvard Law Review Forum essay, read the Act to include children with only a citizen mother.  Historian Saul Cornell sharply disputed that reading in this essay, and I defended the Clement/Katyal in a response to Professor Cornell.  None of us, however, managed to find the Ex parte Dupont case.

In Dupont, the court interpreted the 1795 Naturalization Act, which has similar language to the 1790 Act (except it does not have the "natural born" phrase).  The court concluded that under the Act, a child born abroad to a U.S. citizen mother and a non-citizen father could be a citizen at birth.  On the particular facts, it found that the child in question was not a U.S. citizen because the non-citizen father had not been a resident of the U.S. for the time prescribed by the statute.  But if the residency requirement had been met, the court strongly indicated that the statute would have conveyed citizenship on the child.

The court's conclusion appears to support the Clement/Katyal reading of the 1790 Act -- that is, that statutory birth citizenship could derive from the citizenship of the mother alone.  (The relevant wording in the two Acts is parallel).

I'm not sure this is terribly important.  The Dupont court could have been wrong; the case was decided well after the Act was passed, and it involved a different (albeit similarly worded) Act.  Moreover, as I said in my response to Professor Cornell, Clement and Katyal could be right about the original meaning of natural born even if they were wrong about the 1790 Act.  But it is at least some evidence that the 1790 Act envisioned a child obtaining citizenship at birth through the mother's citizenship -- which in turn is at least some evidence that Congress thought it had some latitude to define the phrase "natural born."  And the last point is the central proposition in my reading of the natural born citizen clause.

More importantly:  There is always something else out there that we haven't found yet.