This is the second part of my comments on Professor Saul Cornell's essay The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism (2016 Wis. L. Rev. Forward 92). For part 1, see here.
As discussed in the prior post, Professor Cornell's essay appears to make two main points. First, originalist methodology is defective, especially as compared to historians' methodology, in determining original meaning. Second, this deficiency is illustrated by errors originalists have made in interpreting the 1790 Naturalization Act (which in turn have led to misunderstanding the natural born citizen clause). In this post, I will address the second claim.
The essay's principal target is an earlier essay by Neal Katyal and Paul Clement defending Ted Cruz's eligibility to be President. (Cornell also criticizes my draft article The Original Meaning of Natural Born, but I do not rest my argument principally on the meaning of the 1790 Act). He says:
Focusing on the 1790 Naturalization Act, [Katyal and Clement] conjure up a reading that is almost impossible to imagine being accepted by most lawyers and judges in the founding era. "The Naturalization Act of 1790[,]" they assert, "expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the Untied States at some point." Their textualist approach is patently ahistorical. The two lawyers have unconsciously imported modern norms of gender equality into their analysis and produce an interpretation that is utterly implausible.
The 1790 Act provides that the "children of citizens of the United States" shall be considered as natural born citizens. Katyal and Clement say this includes people who had citizen mothers and alien fathers. Cornell says this is "utterly implausible" and that the Act only applies to people with citizen fathers -- and also that Katyal and Clement's error illustrates the deficiencies of originalist methodology.
However, Cornell himself appears to rely principally on just four founding-era sources in opposition to Katyal and Clement: a brief passage from Blackstone's Commentaries, together with some general statements about British practice; an 1805 decision of the Massachusetts Supreme Court, Martin v. Commonwealth; a portion of a comment by Representative Livermore in the congressional debates on the Act; and a comment in St. George Tucker's 1803 treatise on the Constitution. Leaving aside for the moment whether these sources prove his point, it's noteworthy that these are exactly the kind of sources originalists use to determine original meaning. There is simply no daylight between his approach and the standard originalist approach. True, Katyal and Clement do not consider these sources, and they may be criticized on this ground if the sources are informative on the particular subject at hand -- but that is not a critique of originalist methodology; it's a critique of Katyal and Clement for failing to follow originalist methology.
Further, Cornell's sources do not appear necessarily to prove what he thinks they prove. His central claim is that under the law of coverture as it stood in the late eighteenth century, a married woman took on the nationality of her husband and "could have no separate political identity outside her husband's national allegiance." Thus the 1790 Act shouldn't be read to include children of U.S. mothers and alien fathers because (I guess -- Cornell does not spell it out) the U.S. mothers would not be considered U.S. citizens under the law of coverture.
I'm not an expert on the eighteenth century law of married women's rights and status, and it seems that the law in this regard was a bit confused and possibly contradictory. But am not persuaded by Cornell's sources, none of which addresses the question directly. His Blackstone quote describes the status of married women in general terms, without specifically addressing nationality. The Martin case addresses a somewhat different question: whether a Massachusetts statute penalizing failure to support the state during the revolution should be applied to a married woman whose husband did not support the state. The court concluded that she was not within the meaning of the statute because at most she had only acted at the direction of her husband. Although there is some language in some of the opinions supporting the idea Cornell advances, it is not central to the case. St. George Tucker's comment is interesting and worth considering separately, but it does not go to the question of married women's rights. Livermore's quote is the most helpful to Cornell, though he also was not addressing the question directly and quote is more ambiguous when given in full. Livermore said:
That question [that is, the residency requirement] is introduced to prevent any abuse. If these citizens had children they might become citizens, but not to transmit their rights of citizenship. The child of a citizen if abroad may be useful. But that right might be transmitted from father to son and so on to perpetuity.
Cornell relies on the last sentence to say that Livermore thought the statue only applied to children of citizen fathers. Perhaps -- though earlier Livermore spoke generally of "citizens." He may simply have been giving an example that he thought would be most common. And it is not clear if Livermore's observation -- even if it means what Cornell thinks it means -- was representative.
Moreover, there is substantial evidence that women who married aliens did not lose their prior allegiance. First, English statutes prior to 1731 had given "natural born subject status" to persons whose fathers or mothers were English subjects. (A 1731 statute changed it to fathers only, where it remained through the founding era). Thus English law must not have supposed that the woman lost her subject status upon marriage to an alien. Second, the U.S. Supreme Court considered this exact question in Shanks v. Dupont in 1830. Writing for the Court, Justice Story stated (28 U.S. at 246):
Neither did the marriage with Shanks [a British subject] produce that effect [of a loss of U.S. citizenship], because marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not effect her political rights or privileges. The general doctrine is that no persons can by any act of their own, without the consent of the government, put off their allegiance and become aliens. If it were otherwise, then a femme alien would by her marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband, which are clearly contrary to law.
While Dupont was decided well after the 1790 Act was passed, Story seemed to regard the law as longstanding, and he cited a New York case from 1800, Kelly v. Harrison, to the same effect (see 28 U.S. 246, n.1). Kelly involved an Irishman who emigrated to the United States and became a U.S. citizen, leaving a wife behind in Ireland; the question was whether she was alien who could not make a claim on his estate. As Story indicated, the court held that the wife did not become a U.S. citizen merely because her husband did.
Finally, a passage from the congressional debates immediately prior to the one Cornell cites suggests an intent to extend citizenship to children of U.S. mothers. (Documentary History of the First Federal Congress, v. 12, p. 529). Representative Burke wanted to make a slight change to the bill's language to clarify that both parents need not be citizens to make the child a citizen: "it is unnecessary that the father and mother would both be citizens." He then referred to a "Statute [that] was made in W[illiam] the 3rd." Probably he was referring to the statute of 1698, 9 Will. III, ch.20 (the only statute passed under William relating to subjectship), which gave natural born subject status to persons with English fathers or mothers. Representative Livermore replied that Burke's change was unnecessary because the bill already had the effect Burke wanted: 'This [that is, natural born citizenship] is extended to all people and the expression sets forth the children of every citizen."
This exchange, while not crystal clear, appears to support Katyal and Clement's view of the statute, and in any event is inconsistent with Cornell's suggestion that under coverture the husband and wife could not have different allegiances.
Ironically, the strongest evidence Cornell offers against the Katyal/Clement reading is textual: if the 1790 Act gave natural born citizenship to children with U.S. mothers and alien fathers, why did it then require the father -- but not the mother -- to reside in the United States? The Act's language again is:
And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.
This language may seem to suggest that the drafters were thinking only of citizen fathers. Otherwise it does create an asymmetry: a male U.S. citizen could go abroad, marry an alien and have children who were U.S. citizens, but a female U.S. citizen could not do so unless the alien she married happened to have lived in the United States. But perhaps the drafters intended this asymmetry, which reduces the ability of women to transmit citizenship. Perhaps they thought that female U.S. citizens were not likely to marry aliens other than ones who had lived in the United States, so the difference was immaterial. Perhaps they thought that, due to the dominant role of the father in the household in that time, the father should have some connection to the United States even if citizenship came through the mother. In any event, the text, given its natural meaning, does not appear to lead to an absurd result, despite the asymmetry it creates.
In sum, despite claims to be engaged in a different methodological enterprise, Professor Cornell's critique of Katyal and Clement follows conventional originalist/textualist methodology and invokes standard originalist sources. In the end, though, his sources do not greatly undermine the Katyal/Clement reading -- at minimum, they surely do not render it "utterly implausible."
(With apologies to overburdened readers, I plan one additional post discussing how Professor Cornell's essay relates to my theory of the eligibility clause).