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To: higgmeister

Nor does your claiming the opposite. It’s a gray area that the founders didn’t resolve. Still, the best guess is that they were following Anglo-Saxon legal thinking rather than French or Swiss (assuming that what Vattel has been interpreted as saying even was standard French or Swiss legal doctrine, which isn’t certain either).


95 posted on 06/22/2024 5:59:26 PM PDT by x
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To: x
We don't have to guess.  This refutes any supposition with extensive footnotes.
B. Modern Scholarly Interpretations of Early American Understandings

1. The Common Law

As this Article demonstrates, the evidence points to only one conclusion: the
Framers constitutionalized the common law notion of “natural born”—not the
notion expanded upon by the English naturalization statutes—into Article II.
Nonetheless, most commentators currently addressing this question contend
that the Framers adopted a broader view. These authors posit that children
born abroad to American parents satisfy the constitutional requirement.181 In
addition to relying on a mistaken understanding of the English statutes, current
American pundits suggest a few other creative arguments to support their view.
However, none can be substantiated.
First, numerous scholars who claim that the Framers adopted an expansive
view of “natural born” use the example of John Jay’s children.182 Jay, of
course, was the man who suggested to George Washington that the
Commander-in-Chief should be a natural born citizen.183 In the words of one
modern jurist, “[c]ertainly Jay did not mean to bar his own children, born in
Spain and France while he was on diplomatic assignments, from legal
eligibility to the presidency.”184 However, this reasoning does not withstand
scrutiny. Assuming arguendo that Jay had presidential aspirations for his
children, the common law was no bar to them. Children born to those on
diplomatic missions abroad were natural born citizens.185
Another attempt to establish the broader interpretation points to a different
presidential requirement for support: the candidate must have lived in the
United States for a minimum of fourteen years.186 The writer, Gordon,
speculates that “[i]f the Framers were speaking only of the native-born, this
limitation would hardly have been necessary.”187 This conclusion ignores the
alternative explanation that everyone born in the United States is a natural born
citizen, even those children whose parents are only here temporarily. The
residency requirement ensures that such children could not become candidates
for the American presidency as adults after being raised in a different
country.188 Without considering this rationale, the commentator opines, “[The
residency requirement] seems consistent with a supposition that the ‘natural-
born’ qualification was intended to include those who had acquired United
States citizenship at birth abroad.”189 In short, the author rejects an
explanation completely in accord with the understanding expressly stated by
the Framers in favor of a hypothetical explanation that “seem[ingly]” backs up
his own “supposition,”190 without offering a shred of evidence.
A third approach includes an author who attempts to establish that the
Constitution incorporates the broader view of “natural born.” The writer
correctly notes that it was “common in the states after independence, upon the
adoption of their constitutions and statutes, to incorporate both the common
law of England, as well as the statutory laws adopted by Parliament and
applicable in the colonies up until a particular date.”191 These state laws are
known as “reception statutes.”192 Directly following this accurate assertion,
the author incorrectly implies that the federal government also adopted a
modified version of the common law:

There is thus some argument and indication that it was common for a “modified” English common lawmodified by long-standing provisions of English statutory law applicable in the coloniesto be among the traditions and bodies of law incorporated into the laws, applications, usages, and interpretations in the beginning of our nation.193
The commentator, citing the Gordon article,194 predictably makes the same
mistake. Like Gordon, the writer concludes that the broad view of the term
“natural born” was long-standing in England.195 However, more importantly,
the author fails to mention that Congress did not enact a reception statute.
Therefore, that the states adopted some English statutes is irrelevant when
discussing the meaning of the Constitution.
Several authors claim the language of the Clause is confusing. They suggest
that perhaps the Framers did not adopt the common law meaning of the phrase
or that the original meaning is unknowable. For example, one states that “[t]he
notion of a ‘natural born citizen’ was likely a term of art derived from the idea
of a ‘natural born subject’ in English law . . . . But the Constitution speaks of
‘citizens’ and not ‘subjects,’ introducing uncertainties and ambiguities . . . .”196
As discussed above, however, early Americans considered the two terms to be
analogous.
Other pundits speculate that “natural born” is not synonymous with “native
born.”197 Natives are those individuals born within the country’s borders, and
therefore, use of the term “natural” instead indicates to these authors that the
Framers must have meant something different. With no evidence, these writers
assume the phrase includes children born abroad to American citizens.198 Of
course, myriad statements by early American jurists use the terms “natural
born” and “native born” interchangeably.199 In fact, Chancellor Kent defined
“natives” as “what the common law terms natural-born subjects.”200
The Natural Born Citizen Clause as Originally Understood
99 posted on 06/22/2024 8:18:45 PM PDT by higgmeister (In the Shadow of The Big Chicken! )
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