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01/05/2019

Congress's Power to Define "Natural Born" (Final Version)
Michael Ramsey

The final version of my essay Congress’s Power to Define “Natural Born”: A Response to Professor Lee (68 Am. U. L. Rev. F. 23 (2018)) is now available.  Here is the abstract:

Professor Thomas Lee and I independently wrote recent Articles on the original meaning of the Constitution’s “natural born Citizen” clause, reaching somewhat different conclusions.  This brief Response comments on our agreements and differences.  Two points of agreement merit particular emphasis.  First, we agree that the original meaning of “natural born” in the eligibility clause can be understood in significant part through its English law antecedents, specifically the English law concept of natural born subjectship.  Second, we agree on the basic evolution of English subjectship law—specifically, that it began in ancient times as almost exclusively based on the principle of jus soli, or subjectship arising from a person’s birth within sovereign territory, and evolved through a series of statutes to also include elements of the continental European principle of jus sanguinis, deriving subjectship from the subjectship of a person’s parents.  We principally disagree on how the Constitution, through the eligibility clause, adopted English law’s incorporation of jus sanguinis.  In Professor Lee’s view, the eligibility clause adopted English subjectship law’s definition of “natural born” largely as it stood in 1787.  My view, as described in more detail in The Original Meaning of “Natural Born,” is that the clause—combined with Congress’s power over naturalization—gave Congress some power to adopt and define the parameters of jus sanguinis citizenship, similar to parliament’s power to adopt and define the parameters of jus sanguinis subjectship in seventeenth and eighteenth century England.

And here is one of its central points, responding to a common criticism of my original article on the natural born citizen clause (footnotes omitted):

Professor Lee criticizes the view that would give Congress unlimited power to define natural born citizenship (including, for example, to convey it upon people with no connection to the United States at birth, and on the basis of actions taken long after birth).  Such unlimited congressional power, he argues, would be inconsistent with the clause’s purpose, which was to prevent people without life–long connections to the United States from becoming President. If Congress could declare anyone to be a natural born citizen, the eligibility clause would be effectively meaningless, or rather it would be an odd and awkward way of saying that Congress had plenary power to decide who should be eligible to be President.

I agree with Professor Lee on this point, and it is important to emphasize that I do not read the clause to have given Congress such an unlimited power.  As described in The Original Meaning of “Natural Born,” my view is that the Constitution gave Congress power to define which connections to the United States at birth (beyond birth within its territory) would be sufficient to establish natural born citizen status.  I do not contend that the Constitution gave Congress power to declare persons lacking connections to the United States at birth to be natural born citizens.  Thus, in my reading the original meaning of the eligibility clause had substantial limiting force consistent with the clause’s purpose to provide a constitutional restriction on eligibility.

My view of Congress’s power parallels Parliament’s practice in the seventeenth and eighteenth centuries.  During this time, Parliament passed a series of statutes declaring various groups of persons born outside sovereign territory to be natural born subjects.  The requirements for such status shifted from statute to statute, but a common element was that the persons made natural born subjects by statute had a connection to England at birth because at least one of their parents was an English subject. This practice was described at the time as part of Parliament’s naturalization power, and my conclusion is that it carried over to Congress’s naturalization power under the Constitution.