In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born in 1936 in the Panama Canal Zone to parents who were American citizens, was a “natural born Citizen” ratified my point, as virtually all commentators purported to undertake an originalist inquiry.
I hadn’t seen any reason to comment on the left-wing “birther” attacks on Senator Ted Cruz’s eligibility to be president. Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.
As this Congressional Research Service report sums it up (p. 25; see also pp. 16-21), the “overwhelming evidence of historical intent, general understandings [in 18th-century America], and common law principles underlying American jurisprudence thus indicate[s] that the most reasonable interpretation of ‘natural born’ citizens would include those who are considered U.S. citizens ‘at birth’ or ‘by birth,’ … under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent.” In other words, there is strong originalist material to support the semantic signal that “natural born Citizen” identifies someone who is a citizen by virtue of the circumstances of his birth—as distinguished from someone who is naturalized later in life as a citizen. (In McCain’s case, the dispute turned on whether he was indeed an American citizen by virtue of his birth—or was instead naturalized a citizen under a law enacted when he was eleven months old. For more, see law professor Gabriel Chin’s lengthy article making the case against McCain.)
To my surprise, the New Republic’s Noam Scheiber tries to argue that Cruz’s embrace of constitutional originalism somehow means that Cruz can’t determine that he is a “natural born Citizen.” But the only evidence that Scheiber offers for this position is the assertion (which Scheiber mischaracterizes as a concession) by a non-originalist law professor in an MSNBC interview that the proposition that a person is a “natural born Citizen” if he is a citizen by virtue of his birth “isn’t really clear cut if you limit yourself to the actual wording of the Constitution” (that’s Scheiber’s paraphrase) but instead depends on “how our understandings have evolved over time.” Scheiber both overlooks the powerful originalist evidence in support of Cruz’s status as a “natural born Citizen” and misunderstands how originalist methodology operates. (In public-meaning originalism, you don’t “limit yourself to the actual wording of the Constitution,” and you don’t find yourself lost simply because the Constitution “never defines what ‘natural born’ means.” You instead look to the public meaning of the term at the time it was adopted.)
My point here isn’t to contend that the originalist evidence points entirely in one direction. As law professor Michael Ramsey observes in a post that I’ve run across while finalizing this post (a post that also takes issue with Scheiber), there are originalist scholars who don’t “find the argument entirely conclusive.” But Scheiber’s piece is a cheap whack at Cruz as well as a cheap whack at originalism.
You post the quote above in bold which comes from the Naturalization Act of 1790. All the while, you KNOW (or should know) that the NA of 1790 was superseded by the Naturalization Act of 1795 - which DID NOT include the term “natural born”.I was speaking of the intent of those who wrote the Constitution. 40% of those who signed the Constitution were in that first Congress. That a later Congress deleted the words "natural born" doesn't change the intent of our first Congress.
And they very clearly specified that it did NOT take both birth on US soil, plus citizen parents, in order for a person to be a natural born citizen, or eligible to the Presidency.
So we know for a FACT that the Framers of the Constitution did not intend the term "natural born citizen" to mean "born on US soil to two citizen parents."
Not that that's the only evidence we have. There is a TON of evidence as to what the Founders, Framers and their generation meant by the term.
It's just some of the most clear and concise, that show that they DID NOT mean "born on US soil of two citizen parents."
Here's more:
The Meaning of Natural Born Citizen in Early America
"Natural born subject" and "natural born citizen" were used interchangeably by State of Massachusetts (1785-1790).
This is important because it shows that "natural born citizen" and "natural born subject," except for the difference of subservience to a king, were understood to mean exactly the same thing in the early United States. And "natural born subject" had a long legal history. All persons born in the country, even of alien parents, were "natural born subjects," except for the children of representatives of foreign governments, and of invading armies. Here are some examples:
February, 1785, “AN ACT FOR NATURALIZING NICHOLAS ROUSSELET AND GEORGE SMITH.”in which it was declared that Nicholas Rousselet and George Smith “shall be deemed, adjudged, and taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
March, 1787, “AN ACT FOR NATURALIZING WILLIAM MARTIN AND OTHERS.” in which it was declared that William Martin and Others, ”shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
October, 1787, “AN ACT FOR NATURALIZING BARTHOLOMY DE GREGOIRE, AND MARIA THERESA, HIS WIFE, AND THEIR CHILDREN.” in which it was declared that Bartholomy de Gregoire, and Maria Theresa, his wife, their children, ”shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
November, 1788, “AN ACT FOR NATURALIZING ELISHA BOURN, AND OTHERS, THEREIN NAMED.” in which it was declared that Elisha Bourn and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, & entitled to all the liberties, privileges & immunities of natural born Citizens.”
In March, 1790, “AN ACT FOR NATURALIZING JOHN JARVIS, AND OTHERS, THEREIN NAMED” in which it was declared that John Jarvis and others, “shall be deemed adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
In many or most of the States, in fact, the use of "natural born subject" in law gradually gave way to use of "natural born citizen" in the same circumstances. French translation of the Constitution by Phillip Mazzei, Thomas Jefferson's VERY close friend and next-door neighbor (translated, 1788):
“Nobody, without being a born citizen, or having been a citizen of the United States at the time…”
This is from Mazzei's sweeping 4-volume work in French, The History and Politics of the United States of America ("Recherches Historiques et Politiques sur les Etats-Unis de l'Amérique Septentrional"). One of the very earliest published statements of what the natural born citizen requirement meant, it equates natural born citizen with born citizen. Given the extremely close lifelong relationship of Jefferson and Mazzei, this can almost certainly be considered authoritative as to what Thomas Jefferson himself understood "natural born citizen" to mean.
James Madison, House of Representatives (1789):
"It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other. Mr. Smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony."
Madison, the Father of the Constitution, mentions both jus soli (the law of the soil, or place of birth) and jus sanguinis (the law of blood, or parentage) here. But notice the emphasis: "In general place is the most certain criterion; it is what applies in the United States."
The First Congress (1790):
"And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens.".
Our very first Congress specified that the overseas-born children of US citizens "shall be considered as natural born Citizens."
This Congress included James Madison, the "Father of the Constitution." These men were well aware of the Presidential eligibility clause, and they clarified that those born overseas to US citizens were eligible to the Presidency. This makes it absolutely clear: the idea that eligibility requires BOTH birth on US soil AND citizen parents is FALSE. In this instance, our early leaders specified that citizen parents ALONE was quite enough.
Between the House of Representatives, the Senate, and the Presidency, 16 signers of the Constitution - a full 40% of those who signed the Constitution - were members of the group who approved this Act.
French translation by Louis-Alexandre, Duc de la Rochefoucauld, friend of Benjamin Franklin (translated, 1792):
“No one except a ‘natural,’ born a citizen…” (or possibly, “No one except a ‘natural-born citizen’)
By the French Duc de la Rochefoucauld, who knew Benjamin Franklin personally. He and Franklin had previously co-published The Constitutions of the Thirteen United States of America ("Constitutions des Treize Etats-Unis de l'Amérique") in Paris, while Franklin was the American ambassador to France. No mention whatsoever of parentage.
Zephaniah Swift, A System of the Laws of the State of Connecticut: In Six Books (1795):
"The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.”
Speaks for the State of Connecticut. Remember, there is no documentation ANYWHERE that says "natural born citizen" ever meant anything different from "natural born subject," except for the difference between "citizen" and "subject." Swift's legal treatise was read all over the United States, including by several Presidents and several US Supreme Court Justices.
Alexander Hamilton on how to understand the meaning of the terms used in the Constitution (1795):
"What is the distinction between direct and indirect taxes? It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution... unfortunately, there is equally here a want of criterion to distinguish duties, imposts, and excises from taxes... where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived."
Hamilton tells us that our jurisprudence has been derived from that of England, and that if we want to understand the meaning of terms used in the Constitution, the place to look is to the laws of England that came before. This is important because the English common law was the fundamental legal training for every lawyer in America. The Constitution contains a variety of legal terms which appear no place other than in the common law. Those who claim we got the definition from Swiss philosopher Vattel are simply not telling the truth. Vattel never even spoke of "natural born citizens." He spoke of "natives, or indigenes." The latter was mistranslated to "natural born citizens" by a translator in London, England, 10 years after our Constitution was written.
Hamilton said we got the terms in the Constitution from the English common law. It is clear that "natural born citizen" came directly from "natural born subject," which never required citizen or subject parents.
French translation, (translated, 1799):
“No one shall be eligible to the office of President, if he is not born a citizen of the United States…”
Born a citizen. Once again, it appears the correct definition of "natural born citizen" is simply: born a citizen.
St. George Tucker, Blackstone's Commentaries on the Laws of England (1803):
“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence… A very respectable political writer makes the following pertinent remarks upon this subject. “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it.”
Tucker was one of the most important early legal experts. His book became "the most popular reference work for students and practitioners of United States law until the mid-19th century." He totally equates "native-born" (which always simply meant born in America) with "natural born," and approvingly quotes another writer who said natural born citizens are "those born within the state."
Garder v. Ward, 2 Mass. 244 (1805):
“...a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.”
In Massachusetts, they followed the common law. This is consistent with Wong Kim Ark and everything else. (Except, of course, the claims of birthers.)
Kilham v. Ward 2 Mass. 236, 26 (1806):
“The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.”
Once again, Massachusetts uses the common law as the precedent for citizenship..
Ainslie v. Martin, 9 Mass. 454, 456, 457 (1813):
“Our statutes recognize alienage and its effects, but have not defined it. We must therefore look to the common law for its definition. By this law, to make a man an alien, he must be born without the allegiance of the commonwealth; although persons may be naturalized or expatriated by statute, or have the privileges of subjects conferred or secured by a national compact.”
And again.
Amy v. Smith, 11 Ky. 326, 340 (Ky. 1822)
“The 5th section of the 2d article provides, “that no person except a natural born citizen,” shall become president. A plain acknowledgment, that a man may become a citizen by birth, and that he may be born such.”
Kentucky equated "natural born citizen" with "CITIZEN BY BIRTH."
From a Spanish language book on the Constitution (translated, 1825):
“The President is elected from among all citizens born in the United States, of the age of thirty-five years…”
From among ALL CITIZENS BORN IN THE UNITED STATES. No mention of parentage.
French translation by the private secretary of the Marquis de Lafayette, who was a personal friend of our first six Presidents (1826):
“No individual, other than a citizen born in the United States…”
This translation is important for a number of reasons. First, the Marquis had himself been declared a "natural born citizen forever" of Maryland, by the State's legislature. So he had darn good reason to know what the phrase meant. Secondly, he was a good friend of every single one of our first six Presidents. This included George Washington, James Madison, John Adams, Thomas Jefferson, and James Monroe. (And John Quincy Adams, too.) He had served as a General in the Revolutionary War under Washington, was instrumental in our gaining France's support, and was such a hero in America and France that he was known as "The Hero of the Two Worlds."
James Kent, COMMENTARIES ON AMERICAN LAW (1826):
“And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.”
Common law, natural born subjects, SAME THING APPLIES HERE. Also, subject and citizen can be used interchangeably. Kent was another of our top early legal experts, which we are rapidly running out of. More from Kent:
“As the President is required to be a native citizen of the United States…. Natives are all persons born within the jurisdiction and allegiance of the United States.”
Once again, NATIVE. Allegiance simply refers to the same historical precedent. Any person born within the country was born within the allegiance of the country, unless his parents were foreign ambassadors or royalty, or members of an occupying army. We also added two more exceptions: Indians in tribes, because Indian tribes were considered to be just like foreign nations that we did not control and made treaties with, and slaves, because they were legally considered to be property, not people.
French books on the Constitution:
“The President must be a born citizen [or born a citizen] of the United States…" (1826)
Born citizen, born a citizen.
“No one, unless he is a native citizen…” (1829)
Native citizen. No mention of parentage whatsoever.
By the way, the list of quotes from this time period saying the President had to be a "native" is not exhaustive. I have only included those from the most authoritative sources.
Leake v. Gilchrist, 13 N.C. 73 (N.C. 1829)
“The country where one is born, how accidental soever his birth in that place may have been, and although his parents belong to another country, is that to which he owes allegiance. Hence the expression natural born subject or citizen, & all the relations thereout growing. To this there are but few exceptions, and they are mostly introduced by statutes and treaty regulations, such as the children of seamen and ambassadors born abroad, and the like.”
Again explicitly states that birth in the country makes on a NATURAL BORN CITIZEN, even if one's parents are ALIENS.
William Rawle, A View of the Constitution of the United States, pg. 86 (1829)
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”
You really can't get any clearer, well-stated, and absolute. Again, Rawle was a legal expert. He was VERY close to both Franklin AND Washington, held meetings with them in the months leading up to the Constitutional Convention, and was in Philadelphia WHILE THE CONSTITUTIONAL CONVENTION WAS TAKING PLACE.
Justice Joseph Story, concurring opinion, Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 155,164. (1830):
“Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.”
Story was a LEGENDARY Justice on the Supreme Court. He would soon write the first comprehensive treatise on the provisions of the U.S. Constitution (see below, in 1840). And he tells us, quite clearly, that NOTHING is BETTER SETTLED.
American Jurist and Law Magazine, January, 1834:
“From the close of the revolutionary war to the time of the adoption of the constitution of the United States, all persons born in this country became citizens of the respective States within whose jurisdiction they were born, by the rule of the common law, unless where they were prevented from becoming citizens by the constitution or statutes of the place of their birth.”
Again: The rule was by the common law.
Another French translation, 1837:
“No one can be President, unless he is born in the United States…”
Once again, born in the US. No mention at all of parentage. As is ALWAYS the case.
State v. Manuel, 4 Dev. & Bat. 20, 24-26 (1838):
“Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens... Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign State. The term ‘citizen,’ as understood in our law, is precisely analogous to the term ’subject’ in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a ’subject of the king’ is now ‘a citizen of the State.”
Straight-out tells us: natural born subjects became natural born citizens, and NO OTHER CHANGE in the citizenship rules took place. In other words, children of aliens born in the US were natural born citizens, because they were always natural born subjects before.
Tennessee State Legislature, An Act to Regulate and Declare the RIghts of Foreigners (1838)
"Be it enacted by the General Assembly of the State of Tennessee, That all natural born citizens, or persons born within the limits of the United States, and all aliens subject to the restrictions hereinafter mentioned, may inherit real estate and make their pedigree by descent from any ancestor lineal or collateral…”
Clearly defines what "natural born citizen" meant to the Tennessee State Legislature in 1838. Anyone born within the limits of the United States was a natural born citizen without any regard to parentage.
From Spanish-language books on the Constitution:
“No one can be President who has not been born a citizen of the United States, or who is one at the time of the adoption of this Constitution…” (1837)
Born a citizen.
“The President must be a citizen born in the United States…" (1848)
Born in the United States. No mention of parents.
Acts of the State of Tennessee passed at the General Assembly, pg. 266 (1838):
“That all natural born citizens, or persons born within the limits of the United States, and all aliens subject to the restrictions hereinafter mentioned, may inherit real estate and make their pedigree by descent from any ancestor lineal or collateral…”
The State of Tennessee defined natural born citizens are those born in the United States. No mention at all of parents.
Supreme Court Justice Joseph Story, in his Constitutional handbook, A Familiar Exposition of the Constitution of the United States. (1840)
"It is not too much to say, that no one, but a native citizen, ought ordinarily to be intrusted with an office so vital to the safety and liberties of the people."
Native citizen.
Bouvier Law Dictionary (1843):
“...no person except a natural born subject can be a governor of a State, or President of the United States.”
America's first prominent law dictionary. Uses NATURAL BORN SUBJECT as an exact equivalent for natural born citizen! Thus showing again, there was no practical difference between the two.
Lynch vs. Clarke (NY 1844):
“The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President… The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. ”
Flat-out ruled that the US born child of alien parents was eligible to the Presidency.
Mr. Clarke's attorneys actually attempted to invoke Vattel. Vice Chancellor Sandford rejected their arguments, noting:
"[Vattel says] in reference to the inquiry whether children born of citizens in a foreign country, are citizens, that the laws have decided the question in several countries, and it is necessary to follow their regulations."
In other words, even according to Vattel, the citizenship laws of England and America were different from his Swiss ideas.
Lysander Spooner, The Unconstitutionality of Slavery, pg. 119 (1845)
“Every person, then, born in the country, and that shall have attained the age of thirty-five years, and been fourteen years a resident within the United States, is eligible to the office of president.”
Once again, every person born in the country. No mention of parents.
The New Englander, Vol. III, pg. 434 (1845)
“It is the very essence of the condition of a natural born citizen, of one who is a member of the state by birth within and under it, that his rights are not derived from the mere will of the state.”
A natural born citizen is a member of the state by birth within and under it. Just another way of saying "citizen by birth."
