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03/24/2016

"Natural" Born Citizens Are "Native" Born Citizens
Andrew Hyman

Mike Ramsey recently referred to arguments by Harvard Law Professor Einer Elhauge as to what the Constitution's Natural Born Citizen (NBC) Clause means.  Professor Elhauge wrote the following:

[A]t the time the Constitution was enacted, the word “natural” meant arising from the nature of things.  Thus, “natural law” was distinguished from statutory law, and natural rights were distinguished from statutory rights. Thus, the ordinary meaning at the time was that “natural born” citizenship meant the citizenship that arose as a matter of the natural law that was recognized at common law.

Actually, the word “natural” was used in various different senses in 1789, and the task for originalists is to figure out which sense was used in the NBC Clause.  Professor Elhauge is mistaken to think the word “natural” in the NBC Clause meant the same thing it meant in the term “natural law.”  

A dictionary by John Ash published in 1775 gave “native” as a definition of “natural,” and Ash also indicated that “native” is the pertinent definition in the context of "naturalization."  Ash furthermore said that “native” means either an inhabitant or an offspring.  The lexicographer Samuel Johnson wrote pretty much the same things in 1756.

Aside from dictionaries, lots of books during that era referred to “native born subjects."  And, James Iredell said the following during the ratification debate in North Carolina: "No man but a native, or who has resided fourteen years in America, can be chosen president” (emphasis added).  The word “natural” in the NBC Clause thus meant “native,” which is a different sense of the word “natural” than one finds in the term “natural law.”  

According to Mike Ramsey, "Because English common law, at least with regard to subjectship, regarded itself as founded on natural law, the Constitution’s use of 'natural' might be thought of as an express incorporation of common law."  I am not persuaded by Professor Elhauge that the English parliament, or for that matter British judges, regarded statutes as lacking foundation in natural law, or as being inferior to judge-made law in that regard.  For example, Chief Justice John Vaughan wrote in the case of Hill v. Good (1674): "When an Act of Parliament declares a thing to be forbid by God’s law, it is To be so taken by us…."  In any event, the NBC Clause meant "native" born citizens, and does not use the word "natural" in the sense of "natural law."

MIKE RAMSEY ADDS:  I'm just happy that Professor Elhauge thinks (a) at least some disputed clauses of the Constitution have a fixed discoverable original meaning that can resolve modern debates and (b) judges should intervene in the political process to enforce the original meaning.  We don't get that kind of support from Harvard Law every day.