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04/16/2018

The Original Meaning of 'Natural Born' (Revised)
Michael Ramsey

I have posted a revised version of my article The Original Meaning of "Natural Born" (University of Pennsylvania Journal of Constitutional Law, Vol. 20, 199-246, 2018, forthcoming) on SSRN.  The central arguments remain the same but I have corrected some incidental errors and responded to numerous helpful comments.  Here is the (revised) abstract:

Article II, Section 1 of the U.S. Constitution provides that no one but a “natural born Citizen” is eligible to be President of the United States. Modern conventional wisdom generally holds that the phrase “natural born Citizen” includes anyone made a U.S. citizen at birth by U.S. statutes or the Constitution. But that conventional wisdom is under attack in academic commentary and open to doubt on textual grounds. If anyone born a U.S. citizen is eligible, the word “natural” in the eligibility clause is superfluous. Further, in general in eighteenth-century legal language, natural meant the opposite of “provided by statute” (hence “natural law” and “natural rights”). And plausible arguments can be made for a narrow meaning of “natural born” on the basis of either traditional English common law or eighteenth-century continental public law. To this point, modern scholarship has provided no comprehensive response to these objections.

This article defends the broad view of the original meaning of the eligibility clause. Although it finds that the usual sources of original meaning – the Constitution’s drafting and ratifying history, and contemporaneous commentary – are inconclusive on the meaning of “natural born,” it argues that meaning of the phrase in English law provides a useful guide. Under traditional English common law, a “natural born subject” meant, with minor exceptions, only a person born in English territory. But beginning in the seventeenth century, in a succession of Acts Parliament extended the meaning of “natural born” to include some persons born abroad to English parents. In adopting the phrase “natural born” from English law, the American framers likely understood that they were using a phrase without a fixed definition and subject to at least some legislative alteration through the naturalization power. That conclusion in turn provides support for the modern view that Congress can create categories of “natural born” citizens by statute, although that power is likely subject to some limitation to preserve the original purpose of the eligibility clause.