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Professor Tribe on Natural Born Citizens
Andrew Hyman

In a recent opinion piece for the Boston Globe, Professor Laurence Tribe writes: "the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a 'natural born' citizen."  In contrast, the source that Tribe cites says: "By 1787, English law thus included two bases for natural born citizenship: (1) birth in England; and (2) birth abroad as the child or grandchild of a natural born English subject."  Presumably this was a very forgivable unintentional error on Professor Tribe's part.

Recently, I came across an English statute from 1747 that indicates a third basis in English law for natural born citizenship (NBC): seven years of residency in the American colonies, regardless of the location of birth or the citizenship of the parents, provided the colonist took an oath of fidelity to the protestant religion.  If one were a stickler about English law of the 18th century (which I am not in this instance), it appears that Senator Cruz would qualify for the presidency this third way too, although we would have to sever the religious test.  

As indicated in my blog post a few days ago, I am inclined to simply use Samuel Johnson's dictionary to explain what a natural born citizen is, without relying on English law.  There are several reasons for this.  First, the 1747 statute would make the NBC requirement superfluous, given that the religious test must be ignored, and given that the Constitution already requires being "fourteen Years a Resident within the United States." Second, the framers of our Constitution might well have explicitly incorporated old English law into the NBC Clause, as they did into the Seventh Amendment, if they had really wanted to.  Third, I am not a big fan of deeming constitutional phrases as technical terms of art unless they are used verbatim, and of course the NBC Clause departs from the verbatim English terminology (mainly because the framers thought the word "subject" was inappropriate absent a monarchy).  And, fourth, there is little evidence that the framers wanted to require patrilineal transmission of citizenship as an eligibility requirement for president (without requiring the president be male), whereas patrilineal transmission might well be necessary if we were to put aside the 1747 statute in favor of older English law.
So, I recommend Johnson's dictionary.  It still leaves some ambiguity, which Congress and the courts can take care of.

P.S. Thanks to Rob Natelson for sending me the full text of the 1747 statute, which I uploaded, and which is linked above.