Many of my contributions to this blog will riff my forthcoming tome on the Constitution and its federalism, cleverly entitled The Upside-Down Constitution. The publisher’s (Harvard University Press) release date is February 15. However, you can already pre-order the book on Amazon.com. What exactly is “upside-down” about our Constitution? Keep reading to find out.
A great deal of ink has been spilled of late on the question what, exactly, it means for someone to be a natural born citizen under the U.S. Constitution. As Senator Cruz was born in Canada, to a mother who was a citizen and father who was not a citizen, the question is on point. The Constitution states in Article II that “no Persons except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”
What, exactly, does that mean?
Akhil Amar, a leading Left-leaning law professor, lays out the consensus opinion. Paul Clement and Neal Katyal provide a somewhat detailed gloss on the question. More good material is available here. These scholars and lawyers take the position that “natural born” means born a citizen, and therefore, not in need of naturalization. Hence Cruz is eligible.
Others, however, disagree. Lawrence Tribe says it’s an open question.
Most of this discussion has focused on the common law definition of “natural born” and how to interpret the 1790 Naturalization Act, according to which “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.”
That is all well and good, but what if the common law and statute law are not the best sources?
We are, after all, dealing with questions of allegiance here. And in such matters, a good case can be made that the Americans rejected the common law, and turned instead to the law of nature and of nations. What was the American Revolution, after all, if not a rejection of the King’s authority? It may be true that the central part of the Declaration of Independence was an indictment of the King at common law, but it is also true that in asserting independence, the Americans appealed to “the Laws of Nature and of Nature’s God.”
William Blackstone, in his Commentaries on the Laws of England, (1765-1769), the leading treatise on common law during the Revolutionary period, wrote that according to English law, “natural-born subjects are such as are born within the dominions of the crown of England.” Those born outside the realm had to be naturalized. He also noted, however, that the law had changed, and the children of English subjects abroad “are now deemed to be natural-born subjects themselves to all intents and purposes.”
The common law, in other words, recognized birthright subjecthood—if one was born on the King’s soil, one could not renounce that allegiance without the King’s explicit written consent. Blackstone put it this way:
The natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due.
That is precisely what the King assented to in the 1783 Treaty of Paris that recognized America’s independence.
By having declared their independence, though, the Americans had rejected that line of thought. For them allegiance was voluntary. The right to divest oneself of American citizenship was understood to be an essential right, one that flowed by necessary logic from the law of nations. George Washington put this logic into practice with regard to loyalists during the War of Independence. If some decided to side with the British, that was their right, Washington understood.
By contrast, the British regarded siding with the Americans as a criminal act. In the British view, the King only conceded that those Americans who declared themselves to be Americans up to 1783 were free of their ties to the King. Those born after 1783 had no right to become American citizens without his explicit consent. In the years leading up to the War of 1812, this conflict of the laws caused a great deal of trouble—many English sailors became naturalized Americans, a legal process that the King did not recognize.
What does the Law of Nations say on the question? In the Founding era, the leading book on the subject was Emer de Vattel’s 1758 The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. Note that Vattel connected the law of nations with the law of nature, or, with the “Laws of Nature and Nature’s God.” Conduct among nations, he argued, was ultimately governed by the principles of natural law, which is to say, transcendent principles applicable to all men at all times. The practical application of the principles of nature to particular cases was always a fraught question.
Vattel’s book was not translated into English until after the Constitution was written, but many of the Founders knew Vattel’s work. Moreover, he was simply describing the logic of the law of nature and nations, not making a bold new argument.
Parenthetically, Edward Coke said something similar about common law: “The laws of nature are most perfect and immutable, whereas the condition of human law always runs into the infinite and there is nothing in them which can stand for ever. Human laws are born, live, and die.” The “artificial logic” of the common law lay in that negotiation between what was right simply and what was the best possible in a given situation.
Now we can ask: What does the law of nature say on the question? Here is Vattel: “by the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§212); the place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him.” [Emphasis, mine] He adds some qualifications, however, and says that, in practice, “The laws have decided this question in several countries, and their regulations must be followed.”
The statutory language from 1790, from the above-mentioned Naturalization Act, suggests that the Founders were following the law of nature and nations. When the law said that children of “citizens” who are living abroad “shall be considered as natural born Citizens,” they were implying as much. They were declaring that, according to a Congress that included James Madison and a host of others who attended the Constitutional Convention and state ratifying conventions, plus George Washington who signed the law, the Constitution, rightly understood, includes such children in the category “natural born,” and so these children would not be in need of naturalization. The lawmakers were not changing the meaning of the term. On the contrary, they were declaring what the Constitution meant as they created a statute. (Recall that the consensus opinion of the time was that each of the branches was equal, and, therefore, had an equal right to declare its understanding of the meaning of the Constitution.)
One could, of course, read it the other way. But would James Madison really think Congress had the right to redefine the term “natural born,” as the other reading implies? Very doubtful. The 1795 Naturalization Act, which explicitly repeals the 1790 Act, says that children born outside the United States “shall be considered as citizens of the United States,” indicating that it held that such children are born citizens, but perhaps not “natural born citizens.” That said, the opinion of the first Congress carries special weight in constitutional interpretation as its members were fresh from the Convention and ratification.
The next sentence of the 1790 Act is also important: “provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.” It’s important because it suggests that the American lawmakers were qualifying Vattel’s reading, and broadening the degree to which the term “natural born” applied to those born outside the United States. Vattel had argued that “I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.” The lawmakers who passed the 1790 Act held that the term “natural born,” constitutionally speaking, applied to all children born abroad to American citizens for a full generation.
Vattel published in 1758. Perhaps the Founders, taking up the question after, recognized that longer sojourns abroad for business were starting to become more common than they had ever been in history. Whatever the reason, the language clearly suggests that the Founders, expressing their constitutional opinion just after the Constitution went into effect, held that children born to U.S. citizens living abroad were “natural born” citizens under the law of nature and nations.
There remains one question, however.
Both Vattel and the common law pointed to “fathers” and not to parents. On the other hand, the 1790 Act spoke of “children of citizens” outside the United States. Was the term “citizens,” plural, used simply to apply all such cases? Alternately, it could suggest that it only applied to the children of two American parents, or it might have been meant to apply to the child of any American parent, male or female. That is a very hard call. Some of the court cases regarding women who stayed in the United States after their Loyalist husbands left the Union might indicate that the correct reading is that the children can follow their mother’s citizenship. But that’s an open question.
In one sense it’s a moot point. The number of people who would insist on making such a distinction between male and female is vanishingly small. I am tempted to punt on the question, and follow the line James Madison took when he signed the second Bank of the United States into law. Any questions about the constitutionality of such a bank, he wrote, are:
precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation.
That said, there is a very good argument to be made that the 14th Amendment, which declared that all “persons . . . are citizens,” resolves any ambiguity on the question by including women as full citizens in this sense, amendments being the originalist means of changing the Constitution.
Ultimately, the Electoral College, the body with the constitutional standing to decide who, among those received votes in the election, is constitutionally qualified to be President, must decide that question for itself.