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08/11/2020

Is Kamala Harris a Natural Born Citizen?
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: Yes, Kamala Harris Is Indeed a Natural-Born Citizen.  From the introduction: 

I saw over the weekend that some people argue that Kamala Harris is ineligible to be Vice-President: apparently her parents weren't citizens when she was born, so the argument goes that she is thus not a natural-born citizen. (Under article II of the Constitution, only a "natural-born citizen" can be President, and the Twelfth Amendment provides that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.")

But "natural-born citizen" appears to have been the Framers' adaptation of the familiar English term "natural-born subject" (though with the "subject" of a monarch being changed to the "citizen" of a republic). And Sir William Blackstone, who immensely influenced the Framers' understanding of the law, expressly explained that "Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king." The test was place of birth, not the citizenship of parents.

Agreed.  I discussed this point in my article The Original Meaning of 'Natural Born' (20 U. Pa. J. of Const. L. 199 (2018)).  Although the main focus of that article is persons born abroad to U.S. citizen parents, in passing it makes clear that persons born in the U.S. -- with minor exceptions not relevant to Senator Harris -- are natural born citizens under the Constitution's original meaning, even if their parents were not citizens.  (This issue previously came up regarding Marco Rubio in 2016.)

Professor Volokh notes the main counterargument: 

Now the 1797 edition of the English translation of Emer Vattel's treatise on The Law of Nations (a book that had some influence on the Framers), did say that, "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." But that was describing the European civil law rule, not the British common law rule; and in any event, the earlier editions appear to use the word "indigenes" (borrowed directly from the French original "Les Naturels, ou Indigènes") instead of "natural-born citizens."

Presumably the 1797 editor at least viewed the terms as roughly interchangeable. Still, I expect that the Framers, when they were writing the Constitution, mentally linked the "natural-born citizens" phrase more to the "natural-born subject" in Blackstone's very familiar explanation of the common law, rather than to "natives, or indigenes" in Vattel's somewhat less familiar discussion of the civil law.

This is also right, plus as I show in the article, there isn't much evidence that Vattel's approach was endorsed by prominent commentators in the U.S. in the ratification or post-ratification period.  And critically, Vattel did not (in the original French or in translations available to the Constitution's framers and ratifiers) use the phrase "natural born."  As Professor Volokh says, "natural born" was a term from English law and the founding generation in America no doubt recognized its source from Blackstone and other English authorities.