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04/17/2018

John Vlahoplus Responds to Thomas H. Lee on Natural Born Citizens
Michael Ramsey

John Vlahoplus (Independent) has posted 'Natural Born Citizen': A Response to Thomas H. Lee (American University Law Review Forum (forthcoming)) on SSRN.  Here is the abstract: 

In "Natural Born Citizen" Thomas H. Lee provides a challenging and in his own words "novel interpretation" of the original meaning of that constitutional term. Lee analyzes a wide range of sources including American constitutional history, Anglo-American legal treatises, continental natural law theory, and four centuries of English and British statutes and political and economic history. He concludes that the original meaning of the term at the adoption of the Constitution includes foreign-born children of "U.S. citizen fathers who had resided in the United States but went abroad temporarily for a private purpose," following the natural law principle of jus sanguinis (right of blood). He considers the analysis to be important in part because it shows how to do originalism.

This Response disputes Lee's conclusion and argues that he overlooks or misinterprets important authorities including writings of the Founders, legislative history from the First Congress, the 1608 English decision in Calvin's Case, relevant portions of Blackstone's Commentaries, and the English and British statutes and cases interpreting them. It suggests that "Natural Born Citizen" represents a constructive rather than an originalist interpretation of the Constitution. Finally, it suggests that Lee's conclusion implies significant additional rights to birthright citizenship and judicial power to interpret natural law in the constitutional context. "Natural Born Citizen" may not be originalism, and it may not constrain judicial power as some intend originalism to do, but it is certainly a bold and challenging interpretation of Anglo-American legal history that merits close attention.

Professor Lee's paper is here: "Natural Born Citizen" (American University Law Review, Vol. 67, No. 327 (2017).

John Vlahoplus' previous paper on the issue is: Toward Natural Born Derivative Citizenship (British Journal of American Legal Studies, Vol. 7, forthcoming 2018).

Add my paper on the eligibility clause, and there are three recent and very different originalist accounts of the Constitution's natural born citizen requirement.  And to complete the picture, there is Mary Brigid McManamon's paper from a few years ago, The Natural Born Citizen Clause as Originally Understood (Catholic U. Law Review 2015).