Replies

nevertheless passed the bill as a favor to pre-ratification diplomats who might have been on assignment, and have had children born overseas. Some of these were founding fathers.
...
The 1790 act was also used by Tribe and Olson in their effort to argue for the natural born citizenship of McCain, since it was clear that Obama’s handlers really wanted to run against McCain; McCain's ineligibility would and probably did prevent any questions about eligibility being asked from McCain's; campaign

Actually the children of both military and diplomats serving temporarily outside the country are, by section 217 (section 212 is where the NBC criterial comes from), Book I of Vattel's Law of Nations, are deemed to meet the "born in the country" criteria.

Section 217 Children born in the armies of the state.

For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.

You are correct El Gato. It appears however that the founders chose not to incorporate that qualification, or Marshall, who was on the ratifying committee as the Virginia delegate, would have said so. He was so often the justice who understood the importance of clarifying the law, and one of the clearest authors. I can see why it might have raised questions. The founders adopted natural born citizenship only for the president; they treated the requirement at a protection - not a right. As both Marshall and Waite pointed out, native citizens have every privilege of natural born citizens except presidential eligibility.

Suppose an envoy, a citizen at the ratification, had been in England, where a child was born. For the next fifteen years the child was educated in England, returning to the U.S. in 1812 (perhaps on The Venus). He continued his education and became a presidential candidate twenty years later. Did our founders want to vouch that his formative years in England didn't make him long for the autocratic structure and apparent civility of The Crown?

I believe the definition stated by Marshall was intended. Had the legislature wanted to amend it they would have proposed that. I suspect, from The 1790 Act, that there was sentiment to amend it, but with the vast majority included in the natural born citizen category, why take a chance? Our strongest branch of government was the people's house, because it was the branch closest to citizens. I doubt that the house would have approved an amendment to enable foreign born citizens to hold our highest office. I do understand the sentiment. It would have validated McCain, but certainly not Obama.