Or do you agree with Justice Ginzberg that we should refer to foreign law?
Ironically, the founders did when they drafted the Declaration of Independence as well as the Constitution!
French was read by many of the founders. Vattel's LofN was originally written in French, and later transcribed to English. The founders had both versions.
It is still incredible, that the Founders would draw upon law for royal subjects, Cheburashka.
Please consider the following:
“So far we have assumed that the conventional meaning of “natural born citizen” for those learned in the law in the eighteenth century was equivalent to the meaning of “natural born subject” in nineteenth century English law. But is this assumption correct? Does the substitution of the term “citizen” for “subject” alter the meaning of the phrase? And if those learned in the law did recognize a difference, what implications does that have for the meaning of the natural born citizen clause?
The language of the Constitution recognizes a distinction between “citizens” and “subjects.” For example, Article III, section 2 differentiates “citizens” of the several states from “citizens” or “subjects” of foreign states. In the framing era, these terms reflected two distinct theories of the relationship between individual members of a political community and the state. In feudal or monarchical constitutional theory, individuals were the subjects of a monarch or sovereign, but the republican constitutional theory of the revolutionary and post-revolutionary period conceived of the individual as a citizen and assigned sovereignty to the people.
The distinction between citizens and subjects is reflected in Chief Justice John Jay’s opinion in Chisholm v. Georgia, the first great constitutional case decided after the ratification of the Constitution of 1789: “ [A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects . . . .” Justice James Wilson confirmed Jay’s articulation of the opposition between subjects and citizens. Wilson noted that with the exception of Article III, the Constitution refers to “citizens” and “persons,” not subjects: “The term, subject, occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet ‘foreign’ is prefixed.” Both Jay and Wilson’s opinions suggest that usage in the founding era reflects a significant conceptual distinction between the words “subject” and “citizen”. The term “citizen” reflects the notion that individual citizens are sovereign in a republic, whereas the term “subject” reflects feudal and monarchical conceptions of the lord or monarch as sovereign and the individual as the subject.
This conceptual distinction may be relevant to the original understanding of the American constitutional phrase “natural born citizen,” which was used instead of the English legal phrase “natural born subject.” The notion of a natural born subject may reflect a feudal understanding of political obligation: Those born in the kingdom owed a natural duty of allegiance to their king and were his natural subjects. Given a republican theory of popular sovereignty, citizens are sovereign, and the notion of a “natural born subject” would be anathema.”
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Excerpted from: Originalism and the Natural Born Citizen Clause
Lawrence B. Solum *†
* Associate Dean for Faculty and Research and John E. Cribbet Professor of Law and Professor of Philosophy at the University of Illinois. Professor Solum is the author of numerous articles on constitutional theory and the philosophy of law.
† Suggested citation: Lawrence B. Solum, Commentary, Originalism and the Natural Born Citizen Clause, 107 Mich. L. Rev. First Impressions 22 (2008), http://www.michiganlawreview.org/firstimpressions/vol107/solum.htm