« Justice Thomas Gets It Right in Evenwel v. Abbott (UPDATED)
Michael Ramsey
| Main | Nelson Lund: The Corruption of Constitutional Conservatism
Michael Ramsey »

04/06/2016

Seth Barrett Tillman on James Bayard on Natural Born Citizens [UPDATED]
Michael Ramsey

At New Reform Club, Seth Barrett Tillman points to a source that (so far as I know) has never been cited before in the natural born citizen debate: 

James Bayard, A Brief Exposition of the Constitution of the United States 96 (Philadelphia, Hogan & Thompson 1833) (“It is not necessary that a man should be born in this country, to be ‘a natural born citizen.’ It is only requisite he should be a citizen by birth, and that is the case with all the children of citizens who have ever resided in this country, though born in a foreign country.”).  [Ed.: available here].

Bayard also wrote, consistent with other accounts of the eligibility clause:

Were foreigners eligible to the office, it would be an object of ambition, or of policy, with foreign nations to place a dependent in the situation; and scenes of corruption and bloodshed, which disgraced the annals of Poland, might have been acted over again in his country.  The necessity of citizenship by birth, precludes this, by rendering it impossible for a foreigner ever to be a candidate.

I'm not sure how much weight to give the source: it was published 40+ years after ratification, by someone who was not a member of the founding generation.  (Note: this James Bayard, born in 1799, was the son of James Bayard, the Delaware Senator who was instrumental in causing Congress to choose Thomas Jefferson over Aaron Burr for President in the 1800 election.  The younger Bayard went on  to become a U.S. Senator from Delaware like his father, and if wikipedia is to be believed, took some unfortunately positions during the Civil War).  Bayard was a relatively obscure lawyer (as far as I can determine) when he wrote his treatise, and it does not seem to have been widely cited even in its own time.  Nonetheless, it shows that the idea that children born abroad to U.S. citizens were natural born citizens themselves was a plausible position in the mid-nineteenth century.  There's no reason to think Bayard (who was born in Delaware) had any particular stake in the issue, and it is part of an otherwise pretty bland account of the Constitution.

In any event, congratulations to Professor Tillman for finding a new source to discuss.

UPDATE:  Actually, it turns out that the Bayard quote, although not discussed in the academic literature, was previously flagged by William Rawle, in a comment on ... The Originalism Blog!  My apologies to Mr. Rawle.

FURTHER UPDATE: Kevin Davidson points out that he identified the Bayard quote in 2009, in this post (scroll down, under "Other").