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01/19/2016

Some Reader Comments on Natural Born Citizens
Michael Ramsey

Thanks to everyone who has sent me comments on our various natural born citizen posts.  While we don't have a comments function (mainly due to the difficulties of moderating), I am always happy to get comments and to post them (sometimes subject to a little editing) if the commentators want me to.  Here are some interesting ones I have received:

From Kevin Davidson:

[I have this comment] about how you [in your SSRN article] frame the initial conflict by saying that the word "natural" in law contrasts with the word "statutory." That may well be the case, but "natural born subject" is a term of art, and "natural born" is an idiom, neither of which carry the concept of "not statutory." The term of art was defined by Lord Dicey, in his "Digest of the Law of England with reference to the conflict of laws," who wrote: "'Natural-born British subject' means a British subject who had become a British subject at the moment of birth." That definition was cited approvingly by the Supreme Court in US v. Wong. Dicey goes on to explain in his book that there are two types of natural born subjects: common-law and statutory-law. The idiom is defined by the Oxford English Dictionary, which gives only one definition of the term "natural born":  "Having a specified position or character by birth; used esp. with subject."

I agree with the idea that "natural born" is (or, rather, became) an idiom, as the sources he cites reflect.  The problem with these sources is that they are well past the framers' time, but they still may be indicative of a usage that extends back to the framers' time.

From Scott Tepper:

While the United States adopted jus soli in the Constitution (and it was embedded in the 14th Amendment after the Civil War), jus sanguinis citizenship has always been a creature of statute. Based on Rogers v. Bellei, 401 U.S. 815 (1971) (a case which I personally dislike, but it's presently good law), I don't think Ted Cruz is eligible.

If you take your reasoning as well as the holding in Rogers v. Bellei, we could have the anomalous situation of a presidential candidate who was eligible to run for office and serve who was not a citizen (and whose admission to the United States could be barred).  Since the candidate would be "born a citizen" he would be eligible under your reasoning. But if he did not meet the conditions subsequent of the statute that "naturalized" him as a citizen and he lost his citizen, he would not be a U.S. citizen and he would be subject to our immigration laws.

I noted that your law review article fails to deal with Rogers v. Bellei. Did you ever consider it?  if not, now that it has been brought to your attention, what do you think?  (Of course, what I think is that Rogers v. Bellei is bad law. But it's a case to be dealt with in Ted Cruz's case.)

Rogers is an interesting case.  I didn't write about it in the article because it doesn't have much bearing on the original meaning.  But it raises a question whether there is a problem when Congress conditions  birth citizenship on later actions (which the Court in Rogers said it could do).  Professor Jack Chin (UC Davis Law) has an interesting post at Prawfsblawg also exploring the issue.  I think my answer is that it doesn't matter; the person is a born citizen, but if the subsequent conditions are not fulfilled then the person loses that status and becomes ineligible (just as a person born in the U.S. who renounced U.S. citizenship would not be eligible).

From William Rawle (who has given me many helpful comments on this issue in the past as well):

I just finished reading Mr. Natelson's commentary and wanted to add my two cents.  While I agree in general with what he is saying I disagree with his final comment,

"This would explain why the statute provides that the “children . . . shall be considered as natural born”—not that they literally are natural born."

I suspect he is confused by the use of the termed "shall be considered" as the same phrase can be found in the 1790 Act and its meaning can only be "literally are":

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court  that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States.  And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States.  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:  Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed."

Surely Mr. Natelson believes that naturalized persons are literally citizens.
 
Seems like a good point to me.

From Gary Britt:

Your critique of Professor McManamon if I understood it is that she doesn't accept or acknowledge that natural born citizen was understood to be something that could be defined by statute.  It seems to me the 1790 Act took that view and conferred or attempted to confer "natural born citizen" status on foreign born child of a citizen.  But the 1795 Act indicates a change in position and that it and all subsequent acts only confer naturalized citizenship status on foreign born child of a citizen.  The 1795 Act uses the same words/phrase to describe the citizenship conferred to a foreign born child of a citizen as the 1790 Act uses to describe a NATURALIZED aliens citizenship, i.e., "shall be considered as citizens of the United States".

It seems that jumping through lots of hoops of analysis to try and show the likelihood that naturalized citizen at birth equals natural born citizen is unnecessary and not probative when the plain words of the statute are there to use.

[To clarify, [i]t doesn't seem to me that the Congress said anything one way or the other about the definition of natural born in the 1795 Act, but rather the question is did the Congress in the 1795 Act only confer naturalized citizenship status to foreign born child of citizen as the change in language from the 1790 Act would seem to clearly suggest.

One last point.  In 1790 Act Congress set the precedent that to award natural born citizen status the statute has to say that using the words "natural born".  In 1795 Congress changed the words used and the type of citizenship awarded to foreign born children.  Congress since 1795 has not returned to the use of the words "natural born" to describe the type of citizenship awarded and therefore since 1795 only "naturalized" citizenship is the type of citizenship awarded a foreign born child.

I agree this is an issue.  I would say there are two questions on the 1795 Act: (1) What does it say about the constitutional meaning of natural born?; and (2) As a matter of statutory interpretation, does it suggest that -- even if Congress can constitutionally define natural born, it has chosen (since 1795) not to.  On (1), I think the 1795 Act is too ambiguous to provide any good evidence of constitutional meaning, since it's hard to say why Congress changed the wording and only some theories of why they changed the meaning are constitutionally relevant.  On (2), I think this is a challenge for Senator Cruz to explain why the statute makes him "natural born" even if it doesn't literally say so.  This, though, is a question of statutory interpretation.  I'm inclined to think that as to modern statutes, the best reading is that Congress understood it's grant of statutory birthright citizenship citizenship to be the equivalent of giving natural born status.  That appears to be the way it was commonly understood with respect to John McCain, for example.  But I agree this is a somewhat harder question.

From Douglas Petkoff:

I have read your most recent post rebutting Mary McManamon's piece on whether or not Ted Cruz is natural born.  In that post you state that she would be right if we were to have this discussion c. 1400, when presumably the common law definition would control.  You then state that "I don't understand, however, why she thinks that's decisive or why reliance on the statutes is inappropriate."

I would like to briefly respond.  I read US v Wong Kim Ark last night.  The majority opinion goes to great--really exhaustive--lengths to make the case that when interpreting the words in the Constitution in general, and in regard to determining the meaning of a natural born citizen in particular, recourse should be had to the common law.  They quote case after case to show that the common law is dispositive of this question.  There doesn't seem to be any room, from the standpoint of case authority, for importing understanding of British statutory law into the equation.
 
It seems to me very dubious to argue that because the founders likely knew about the British statutes regarding natural born citizenship, that they somewhat haphazardly imported that meaning into the phrase, creating a hybrid statutory/common law definition in the Constitution.  But even if they did so, it seems very inappropriate at this late date to say that this purported 'original public meaning' should trump [haha] binding case law on how to interpret the Constitution.  I don't think that kind of "originalism", if originalism it be, is conducive to interpretive stability.

Given the weight of the case law, it seems more likely, and I think probably the better argument, to say that the original public meaning of 'natural born' is what the common law defined it to mean.
 
On this point I don't have anything to add to what I've already said, except that I don't think Wong Kim Ark is conclusive or even very helpful on the point (especially not for originalism but even for today) since the issue of common law versus statutory law wasn't presented.
 
Jim Henderson points to this amusing post at his Just Sayin blog, asking whether Congress (fed up with feckless American leadership) could declare Vladimir Putin a natural born citizen.  I agree with the post's implication that it cannot, but the question is an important one for those who think Congress can declare people born abroad natural born citizens.  (He also has this post on the lawsuit recently filed regarding Cruz's eligibility).
 
And finally, Jon Roland writes to suggest his essay on the issue (available here), which has an extended historical and doctrinal
discussion concluding that Senator Cruz is not eligible.  Whether or not one agrees, it is quite a resource.