Cruz, McCain, George Romney, Ineligible Candidates for President: Drilling Down into the Natural Born Citizen Qualification for the Presidency

If an officer of the general government of the United States were inclined to comport her conduct with the requirements of the Constitution, how could she do so? Among possibilities, reliance on instinct about what the Constitution forbids and allows is an option; another would be a bit more arduous, tasking the would-be upright constitutional officer more than instinct. She could study the Constitution. She could contemplate the Constitution. She could discuss the Constitution with others, including those who shared her views and those who were amused by her views. She could hide the Constitution in her heart, so that she might not sin against it.

That approach might now guarantee success in her venture. It seems, however, better suited to an honest intention to comport with the metes and bounds of the Constitution. Our Nation’s Founders understood a mindset like that. They saw it in the Psalmist.

The Psalmist wrote, “Your words I have hid in my heart, so I might not sin against you.” This is more than placing a verse of God’s Word on the doorpost of the home, more than tucking a copy of it in the folds of his garment. Instead, he has learned God’s Word. He has read and studied it, meditated on it, considered it, incorporated it into his way of thinking. The approach he took suggests that he viewed God’s word much the same way that Jesus’ disciples would later view it. Many that came out to see Jesus, listened to His teaching, and marveled at the wonders that came to pass at His hand, departed from Him because of His saying that unless they ate of his flesh and drank of his blood they would not have life in them. Jesus, when they departed, turned to his closest followers, the disciples, and asked if they too would depart, and they responded:  “Where would we go, Master, only you have the words of life.”

With his understanding enlivened by his study and incorporation of God’s Word, David sought to live a life in accord with God’s design. Such a life, truly lived, would be one free from sin. David imperfectly approached that true living of God’s Word. His affair with Bathsheba, his murder of Bathsheba’s husband, proved that he approached perfection of life asymptotically at best.

Now, our American government officer, and we Americans alike, can and should study, understand, and enliven the Constitution. For the functionary, she must do so to comport with its requirements and limitations. For the citizen, we should do so to hold the general government accountable to the Constitution.

Picking up the Constitution and reading it through is less work than reading Psalm 119. Understanding the Constitution is less work than untangling the “begets” of the Old Testament, or the mysteries of the Book of Revelations. One good technique for acquiring a facility with the Constitution is contextual understanding. Drilling down into constitutional text, meaning and application as the needs of particular moments arise, when addressing either a constitutional crisis or a mere kerfluffle.

Mocked by many, a stalwart ragtag band of activists have pressed their contention that Barack Obama was not constitutionally eligible to be elected President. Beginning in advance of the 2008 general election, and continuing virtually to today, so called “birthers” have challenged Obama’s eligibility to be President. Their arguments are premised on either of two theories that suggest he could not meet the requirement that the President be a “natural born citizen.”

One line of attack against his eligibility, the one most often played in the media, alleges that Obama was not born in the United States. Being born in another country might, in the right circumstances, prevent the child of an American citizen from claiming US citizenship. These “foreign born birthers” are the ones who have fought for the release of the long form birth certificate that Hawaii’s Secretary of State says is located in their documentary vaults.

The other line of attack is more sophisticated. The “foreign father birthers” do not contend that Obama was born in Kenya or anywhere else other than Hawaii. For these “birthers,” including Clinton supporter Phil Berg, Obama cannot be a natural born citizen because his father was a British subject at the time of Obama’s birth, and owed allegiance to a foreign sovereign.

The questions raised by these two groups of birthers, the constitutional contentions upon which their arguments depend – coupled with the high likelihood that questions about constitutional qualifications will continue into the 2016 Presidential season – makes an evaluation of the Qualifications Clause and the Natural Born Citizen provision of it a worthwhile subject of study.

When they ratified the Constitution, the States established a tripartite general government, consisting of a Legislative Branch, an Executive Branch, and a Judicial Branch. These branches the Framers devised in Articles I, II, and III, respectively, of the Constitution. The Executive Branch, the Presidency, is set up in Article II of the Constitution. Included in that Article are a short, frankly disturbingly short, set of constitutional qualifications for election to the Presidency:

"No Person 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; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States."

As you see, only Natural Born Citizens are eligible to be elected President. Love for this land, sacrifice in its service, lifetime devotion to its preservation, none of these highly significant characteristics suffices, in the absence of one being a “Natural Born Citizen.” Uncertainties on the question of what is a “Natural Born Citizen” have previously moved the United States Senate to action (more on that in a bit) and launched the cottage industry of challenges to Barack Obama’s qualification to be President.

While the waning days of the Obama presidency might mark the end of an era of pressing consideration of eligibility challenges, quite the opposite is true. First, at least two potential contenders for the 2016 Republican nomination for President face the contention of ineligibility based on questions about their status as “Natural Born Citizens:”  Ted Cruz and Marco Rubio. Second, the disputes over Obama’s eligibility reveals continuing uncertainty about the term “natural born citizen,” its meaning within the Constitution, and the power of the federal government to define – or redefine – that term.

With the 2008 presidential candidacy of John McCain, the United States Senate quietly addressed the question whether McCain was eligible, under the Constitution, to be elected president. Eligibility questions have arisen previously. For example, in 2000, some contended that the Bush-Cheney ticket was ineligible based the fact that Both Bush and Cheney resided in Texas. Contentions about McCain’s eligibility rested on other grounds. McCain was born to an American mother in the Panama Canal Zone during his American father’s naval tour of duty there. The Senate expressed its sense on the question, adopting a nonbinding resolution concluding that McCain was, in fact, a natural born citizen.

Was the Senate, correct? Was John McCain a "natural born citizen” of the United States at the time of his birth? The Senate concluded that he was. As it turns out, the question, although simply stated, does not seem to have an easily identifiable analysis and answer.

We seem to presume that questioned American citizenship is resolved simply by asking whether a person was born in America or became an American through the legal process of naturalization. At a high level of generality, that assumption holds true. Closer inspection of particular cases, however, proves that the presumption does not arise from an always binding principle.

For example, suppose a woman serves as an ambassador to the United States from another nation. During her service, and while present in the United States, suppose she gives birth to a daughter. Customarily, although she is “present” in the United States, that is, physically she is within the territory of the United States, she is not “subject to the jurisdiction” of the United States. This conclusion reflects the Law of Nations by which the exchange of emissaries – ambassadors, consuls, and special representatives – is possible. That customary rule clothes such individuals with immunity to the law of the nation to which they have been dispatched.

So, then, what is the citizenship of a child born to a foreign ambassador present in a foreign land? Again, while state simply, the question is not necessarily answered simply. As it turns out, the answer depends on which of two approaches to citizenship the ambassador’s home country has adopted. Some nations follow a legal principle called jus sanguinus; others follow a contrary principle called jus soli.

Nations that follow the jus sanguinus rule tie citizenship to blood relationships. Nations that follow the jus soli rule tie citizenship to the soil on which one is born. Essentially, the rule of jus sanguinus states that what is important is not where one is born, but who one’s father is. To the contrary, the rule of jus soli states that what is important is not who one’s father is, but, instead, where one is born.

Putting aside the special circumstances of the ambassador’s baby, determining citizenship by birth, has long required clarifying the choice of law in the relevant country. To answer this question for persons claiming status as natural born citizens of the United States, we must discover the rule followed an American law, as well as address any subtleties or variations thereof.

To answer the question, we should consider what rule applied in colonial America to resolve citizenship questions and then discover whether that rule changed with America’s independence from England. We should also consider the adoption of State Constitutions and the United States Constitution: did the Constitution itself, change the governing rules for citizenship? Did the Constitution adopt a definition for “natural born citizen?”  Of course, we should also consider subsequent changes in the law – including, for example, amendments to the Constitution and judicial decisions.

The original thirteen States arose when those thirteen colonies severed their ties to the British Crown. Prior to independence, the colonies lived under the laws of England. In turn, English law derived from two sources: the long accumulation of judicial decisions extending back nearly a millennium, a body of law identified as English Common Law; and statute law, imposed by the Crown or enacted by Parliament, which we can call English Statute Law.

At independence, the Founders in every one of the thirteen newly independent States adopted English Common Law as the law for the determination of legal questions until altered or amended by State Legislatures. So, although the tyranny of England’s Crown so burdened the Founding Generation that they engaged in open rebellion and warfare, their essential identity at the time, as Englishmen, was reflected in their decision to retain the familiar body of decisional law called the English Common Law in their new, independent States. (In fact, as additional States joined the Union, virtually every State, except Louisiana, also adopted English Common Law as the body of decisional law for the determination of legal questions.)

As a historical oddity, some elements in the “foreign father birther” crowd will cite a remark by George Mason, made by him during the Virginia Ratification Convention, to the effect that we are not a common law nation. Mason helped to frame the Constitution. He shepherded the Virginia plan through the 1787 Constitutional Convention in Philadelphia. True, he did say, in a moment of rhetorical flourish, that we were not a common law country.

Mason’s flight of rhetorical flourish has to be taken in its context. When he said this, the thirteen independent States had already existed for 11 years under adopted English Common Law. His flourish cannot undo historical fact, and the Reception of English Common Law was just that, historical fact.

Under English Common Law, there was not a status of “natural born citizen.” Civil roles were defined in relation to the Crown. So English Common Law employed a different, but related, concept: “Natural Born Subject” of the Crown. Under English Common Law, every person born within the British realm had status as “Natural Born Subject,” excepting only the offspring born in the realm of foreign emissaries engaged in diplomatic service in England. This fact of English Common Law is confirmed by reference to Blackstone’s Commentaries on the Law of England. It is also confirmed by parliamentary actions. Parliament, by statute, expanded the status of “natural born subject” to certain persons born abroad, whose foreign birth, by English Common Law, would have deprived them of Natural Born Subject status. (Conferring such status served important purposes. For example, the ability to inherit hereditary lands and titles depended on one’s status as a Natural Born Subject.)

So, when the newly independent States adopted English Common Law (but not English Statute Law), they adopted the relevant legal concept, “natural born subject,” modified to suit their status as independent republics. From the foregoing, you see that England followed the rule of jus soli under English Common Law, and to the extent required by English Statute Law, it followed jus sanguinus. Thus, here in the newly independent States, the governing principle, the English Common Law principle, was jus soli.

Following independence and until the ratification by the States of the Constitution in 1790, citizenship was strictly a matter of state law considerations. Being native born, being naturalized as a citizen, each devolved entirely either on the English Common Law adopted by each State at independence (along with its principle of jus soli), or on subsequent enactments of State legislative bodies.

The States ratified the Constitution with its requirement that one must be a “natural born citizen” to be eligible to serve as President. The States omitted from the Constitution any definition of “citizen” and of “natural born citizen.” 

The States did endow on Congress the power to “provide a uniform rule of naturalization.” Congress immediately put that power to work, enacting the Naturalization Act of 1790. That Act allowed free white persons age 21 and older that had resided in the United States for at least two years to apply for naturalization. Such applications could be made to state courts and would be granted on a court’s satisfaction that the applicant was of good character. In the 1790 Act, Congress also declared that certain offspring born abroad to American citizens were “natural born citizens.”

Subsequent to the ratification of the Constitution, only one change to it touched on any question of citizenship. The Fourteenth Amendment declared that all persons born or naturalized in the United States and subject to its jurisdiction were citizens of the United States and of the State in which they resided.:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

That amendment, on the heels of the War Between the States, redressed an error of monumental dimensions committed by the Supreme Court of the United States. In the case Dred Scott v. Sandford, the antebellum Court struck at the compromise by which the uneasy peace of the Union was being maintained. The Court concluded that Congress had not had the power to restrict slavery in federal territories, and also concluded that Africans in America were not citizens, and could never be citizens.

Still, questions remain.

One question would be how many categories of citizenship do we have in the United States. It appears that, by operation of the Fourteenth Amendment, we have a category of “citizens” that includes all persons who are (a) born . . . in the United States and who are (b) subject to the jurisdiction of the United States. We might call these Fourteenth Amendment citizens.

Persons who are not born in the United States become citizens by naturalization. Naturalization is the legal process of making an alien into a citizen. The Naturalization Act provides that process. We call these statutory citizens.

We have not yet resolved how to move that additional step, the one from citizen to natural born citizen. If we follow the English Common Law, the answer would seem to be persons born in the United States and subject to its jurisdiction are not only Fourteenth Amendment citizens, but they are natural born citizens by operation of the common law. If, on the other hand, we follow appeals made by the “foreign fathers birthers,” then there would be one additional step in determining whether a person that is a Fourteenth Amendment citizen by birth is also a natural born citizen. That additional step would be an inquiry into the person’s parentage, particularly the citizenship of the father of the person. Such an appeal to parentage is commanded by the jus sanguinus principle discussed earlier.

With Canadian-born Ted Cruz, the son of an natural born American citizen mother and a Cuban exile father, announcing his candidacy for the Republican nomination for president in 2016, the questions are worth evaluation and resolution.

Hillary's Twelve Dirty Words (or Phrases)

Apparently, supporters of Hillary Clinton say that it will be proof of sexism if these words show up in reporting about her campaign:

• polarizing
• calculating
• disingenuous
• insincere
• ambitious
• inevitable
• entitled
• overconfident
• secretive
• will do anything to win
• represents the past
• out of touch

I had thought that Hillary's calculating failure to admit to her secretive email server until reported in the New York Times, a paper that she would, undoubtedly, have thought she was entitled to some cover from, reflected her overconfident assumption that the Presidential mantle was inevitably hers. Her insincere comments following disclosure of the scandal reveal her continued belief that she will be carried on the pillowed berth on which the lap dance media had carried her during Bill's presidency. Some may now wonder whether the coziness of that relationship, a relationship that represents the past, the halcyon days of Clinton and oral sex in the Oval Office, will result in her actions being glossed by the media.

Apparently, despite a New York home, Hillary is so out of touch with New York and its paper that she thought she was entitled to win despite her disingenuous explanations for the server and the failure to provide access to all her emails. 

The question remains, for this polarizing figure in American politics, though what difference at this point does it make, is whether she is willing to do anything to win?

Abraham Lincoln: "C" List Speaker?

I hold a grudging admiration of Abraham Lincoln. His personal story inspires and amazes. A fitting emblem of a hardier time, he knew the cost of physical labor, the importance of self-improvement, and the value of reasoned explication of the principles to which he adhered. At the same time, he held an odious opinion regarding the ability of whites and blacks to co-exist. Worse, in pursuit of saving the Union, he undertook a regrettable assault on civil liberties, adopted a program of involuntary servitude, and imposed an unconstitutional income tax.

Still, this autodidact was a master rhetorician. Consider, for example the profundity of his 272 word address at the dedication of a battlefield cemetery at Gettysburg:

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But,in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us --that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

Lincoln was not the marquis speaker that day in Gettysburg. That honor fell to Edward Everett, a renowned American orator, Massachusetts governor, member of Congress, and President of Harvard University. His oration, which preceded Lincoln’s, extended two hours. Lincoln’s remarks, by contrast, extended two minutes. Everett recounted the battle of Gettysburg, illuminated its causes, costs, and consequences, and likened this act of State – the dedication of a national battlefield cemetery – to the solemn and somber honors by the Athenians to noble and honored war dead.

In modest self-deprecation, Lincoln suggested that the world would “little note nor long remember” their dedication of the cemetery. Everett immediately recognized, however, the suasion of Lincoln’s stunning, brief remarks. In a letter the following day, he observed the “eloquent simplicity and appropriateness” of Lincoln’sspeech. Moreover, he plainly expressed, by comparison, his admiration of Lincoln’s speech: “I should be glad,” he wrote, “if I could flatter myself that I came as near to the central idea of the occasion, in two hours, as you did in two minutes.”

For all its force, emotion and power, Lincoln’s 272 words are, to this day, among the most recognized of public remarks. Brevity, however, was not his only rhetorical tool.

Lincoln, a lawyer, mastered facts, sifted principles, and spoke plainly. Among his extended speeches, his speech at the Cooper Institute in 1859 is my favorite. Lincoln’s address is often referred to as the Cooper Union address. It was one of a series sponsored by the Brooklyn, New York church of leading abolitionist Henry Ward Beecher. When Lincoln agreed to give a speech on the condition that it might be a political one, the Young Republicans of New York assumed sponsorship of the event and the venue was moved to the Cooper Institute.

In the Cooper Union address, line by line, precept by precept, Lincoln built a case that soundly and completely refuted the two year old decision of the Supreme Court in Dred Scott v. Sandford. In Dred Scott, the Supreme Court ruled that Congress lacked power under the Constitution to restrict slavery in the federal territories. Lincoln’s scholarly refutation built the case that the majority, at least, of the Framers of the Constitution expressly held the view that Congress would have power to regulate and restrict slave-holding in the territories.

But Lincoln did more than refute the contemptible Dred Scott decision (contemptible for its miasmic contention that blacks were not, nor could ever be, citizens within the meaning of that term as used in the Constitution). He set in sharp relief the severe conflict that would fulminate and then culminate in the War between the States:

[T]hey do not state their case precisely in this way. Most of them would probably say to us, "Let us alone, do nothing to us, and say what you please about slavery." But we do let them alone - have never disturbed them - so that, after all, it is what we say, which dissatisfies them. They will continue to accuse us of doing, until we cease saying.

I am also aware they have not, as yet, in terms, demanded the overthrow of our Free-State Constitutions. Yet those Constitutions declare the wrong of slavery, with more solemn emphasis, than do all other sayings against it; and when all these other sayings shall have been silenced, the overthrow of these Constitutions will be demanded, and nothing be left to resist the demand. It is nothing to the contrary, that they do not demand the whole of this just now. Demanding what they do, and for the reason they do, they can voluntarily stop nowhere short of this consummation. Holding, as they do, that slavery is morally right, and socially elevating, they cannot cease to demand a full national recognition of it, as a legal right, and a social blessing.

Nor can we justifiably withhold this, on any ground save our conviction that slavery is wrong. If slavery is right, all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away. If it is right, we cannot justly object to its nationality - its universality; if it is wrong, they cannot justly insist upon its extension - its enlargement. All they ask, we could readily grant, if we thought slavery right; all we ask, they could as readily grant, if they thought it wrong. Their thinking it right, and our thinking it wrong, is the precise fact upon which depends the whole controversy. Thinking it right, as they do, they are not to blame for desiring its full recognition, as being right; but, thinking it wrong, as we do, can we yield to them? Can we cast our votes with their view, and against our own? In view of our moral, social, and political responsibilities, can we do this?

Wrong as we think slavery is, we can yet afford to let it alone where it is, because that much is due to the necessity arising from its actual presence in the nation; but can we, while our votes will prevent it, allow it to spread into the National Territories, and to overrun us here in these Free States? If our sense of duty forbids this, then let us stand by our duty, fearlessly and effectively. Let us be diverted by none of those sophistical contrivances wherewith we are so industriously plied and belabored - contrivances such as groping for some middle ground between the right and the wrong, vain as the search for a man who should be neither a living man nor a dead man - such as a policy of "don't care" on a question about which all true men do care- such as Union appeals beseeching true Union men to yield to Disunionists,reversing the divine rule, and calling, not the sinners, but the righteous to repentance - such as invocations to Washington, imploring men to unsay what Washington said, and undo what Washington did.

Lincoln’s Cooper Union address, and others made on the same East Coast and New England tour, was the equivalent in Lincoln’s day to modern politicians’ trips to Iowa and New Hampshire. As it turned out, the October 1859 address likely set in motion Lincoln’s nomination as the Republican candidate for President.

In the immediate aftermath of the speech, a small scandal threatened.

It was alleged that Lincoln was paid to give the speech. In his correspondence, in fact, he acknowledges receiving the sum of Two Hundred Dollars for expenses and the like. By today’s standards, that seems a modest sum. Allowing for inflation and the change in the value of the dollar between 1859 and today, he received then the equivalent of about $5700.00 in 2015 dollars for the address (although, as it seems, he also made substantial inroads to the Republican nomination with the speech).

Imagine that! Fifty seven hundred dollars paid in order to host, and to hear from, an attorney not then leading in polling inside his own political party. Second-, even third-tier, colleges and universities could afford such a speaker. But with such a discount rate, such a speaker would likely have been priced out as insufficiently lucrative to be managed by any self-respecting speakers’ bureau, according to this post from Nick Morgan.

In fact, as it turns out, Lincoln’s $200.00/$5700.00 speech marks him as quite the piker. In contrast, according to this post, Bill and Hillary Clinton each price out at about $200,000.00 per speech. Another way to think about those numbers is their value in 1859 dollars. It turns out to be a less-than-flattering comparison for Mr. Lincoln. Lincoln speaks for $200.00; Bill and Hillary can only be had for about $7,000.00. Even a time-traveling Karl Rove, the Republican operative, would have drawn a more princely sum than Lincoln, his current draw of about $25,000.00 per speech would have cost $825.00 in 1859 dollars.

And there you have it. Whether tyrant, or savior of the Union … the Great Emancipator or jackbooted thug. The most polarizing and passionate and reasoned man of his, and of many other, generations, a C List speaker!

Vattelic Fetishism

As a lawyer with over quarter century experience in the practice of federal constitutional law, and nearly a decade teaching advanced constitutional law, I can tell you this truth: the outcome of cases can nearly perfectly be predicted by knowing what legal standard a court will apply to any particular question. Like a student writing the results of a lab experiment before, or without, actually conducting the experiment, the outcome of many cases is entirely predicated on the test adopted by the court deciding the case. For example, in cases alleging violations of the right to freedom of speech, when a court announces that the case is governed by the strict scrutiny standard, the chances are extremely good that a government injury to freedom of speech will be found. On the other hand, when the court states that it is applying the reasonableness test, the chances are very good that whatever government action is in dispute will not be found to violate the right.

It is really just that simple. We can tell where others will have us end up by paying attention to the path on which they invite us to walk. Reasoning through disputes over the eligibility of various candidates to be President of the United States is a like experience.

In one camp, relying on English common law, some will contend that a person is a natural born citizen if they are born on United States soil. In the other camp, relying on Emmerich Vattel’s Law of Nations, some will contend that a person born on United States soil is not a natural born citizen if the person’s father is not a citizen of the United States. As the birther movement waxed in the earlier days of the Obama administration, those that depended on the outcome promised by applying principles from the Law of Nations began the torturous work of reconstructing the American Constitution to suit their theories.

Vattel’s Law of Nations, an eighteenth-century treatise, has enjoyed something of a renaissance in the last six years. Not a broad one, across the Nation, the renaissance for this author came from one quarter, namely activists opposed to Barack Obama’s election to the presidency, whose opposition results from their view that Obama is ineligible because he is not a “natural born citizen.” I have discussed this constitutional prerequisite here, here and here. Those activists invoke Vattel because he espoused the principle of jus sanguinus, the rule that one takes the citizenship of one’s father, a principle they have concluded should govern determination of citizenship for the United States.

Invocation of Vattel’s work as a talismanic determiner of citizenship, however, falls flat. True, in the Law of Nations, Vattel states the principle of jus sanguinus. True, jus sanguinus makes the all important questions in deciding citizenship, who is your father and of nation is he a citizen? But, despite the value found by many of the framers in Vattel’s orderly explication of natural law, his views do not now, nor have they ever, governed the disposition of legal questions in the United States.

First, jus sanguinus is contrary to the rule of English common law. Under English common law, one’s standing within the civic community was determined by jus soli, which makes the all important question, not who is your father, but where were you born? (This fact is incontestable: English common law limited status as “natural born subjects” to those persons born on English soil. Parliament enacted statutes to extend that status to persons born away from England because that status was denied to them by common law.) The significance of the English common law approach, adopting jus soli, appears in the following paragraph.

Second, at independence, all thirteen original States of the union by their constitutions, statutes, or judicial decisions, adopted the body of English common law for the decision of legal questions. So called Reception Statutes accomplished the adoption of English common law. Here are the Reception Statutes, or Constitutional Reception Clauses, of Virginia, Delaware, New York, North Carolina, Pennsylvania and Massachusetts. Some in the “birther” movement contend that Vattel’s Law of Nations governs citizenship because it contains an early reference to “natural born citizens” and defines them according to jus sanguinus. They even bolster the claim with the assertion that America is not an English common law nation. That latter claim they bolster by quoting George Mason, who, in a rhetorical flourish made during the Virginia Ratification debates, denied that the common law of England was the common law of the newly independent States. Virginia, as the link provided above demonstrates, enacted a Reception Statute. Virginia, of course, was George Mason's home.

A distaste from Barack Obama does not warrant the flight of fancy required to impose Vattel’s continental views on these Englishmen who had just become the new Americans. Moreover, even were Vattel relevant at our founding, those who depend on him, and on jus sanguinus, fail to account for an intervening fact of constitutional dimensions: ratification of the Fourteenth Amendment. That amendment, a tonic to the erroneous Dred Scott v. Sandford decision, defined citizenship and, for the first time, ensconced a definition of “citizen” where neither Congress nor Vattelists can dislodge it with ease:  in the Constitution. Ultimately, it appears that insistence that Vattel’s views govern these issues for the American republic are mere obstinancy, and approaches fetishistic dimensions.

Deuces Wild ... and Foreign Born Americans Too!

In 1790, Congress first exercised its constitutionally granted power to "establish a uniform rule of naturalization." Until Congress acted, from their independence in 1776, the thirteen original States each exercised independent power -- as any Nation might -- to provide rules for immigration and naturalization. 

When Congress adopted the Naturalization Act of 1790, it took three separate steps. 

First, it adopted a uniform rule for naturalization. Second, Congress conformed its new rule to existing State practices. Third, Congress adopted a rule defining certain offspring born abroad to American citizens as "natural born citizens."

That uniform rule for naturalization provided only that a person having resided two years in the United States, and proving that he is of good character, could apply thereon to a common law court, take an oath to support the Constitution of the United States, and he would, upon the court's grant of the application, be a citizen of the United States. 

Excepted from that broad and gracious rule of naturalization, the Act withheld citizenship from any person previously proscribed by a State from obtaining citizenship, except if they were allowed by an act of the legislature of the State that had refused their previous application. As for children born abroad being treated as natural born citizen, the Act provided, "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[.]"

Many of us, when young, learned a card game or two. 

If, like me, you played with other children whose logic failed them but who yearned for increased odds of winning, you probably have heard the refrain "deuces wild." In truly pathetically illogical cases, you may have heard multiple cards name wild, not just deuces.  Only the dealer's call counted in that magical transformation. If, on examination of his dealt hand, your buddy, called out "deuces wild," it did not affect the rules, but it gave you a powerful hint about the card in his hand.

In cards, as a social convention, rules and variations are established by the house, or the dealer. If you do not like the called rules, you simply decline to ante up and sit out the hand.  Convention empowers the dealer. Convention allows the dealer to choose whether deuces are magically transformed into wild cards.  

So Congress, as I noted above, enacted the Naturalization Act of 1790. In doing so, Congress declared that offspring born abroad to American citizens were, nonetheless, "natural born citizens." That act, that fact, poses, rather than answers, important questions.

First, if "natural born citizen" status was conferred simply by the fact of one's parentage, then why was Congress compelled to provide such a clarification at all? 

Second, while convention permits the dealer to call the rules in a hand of cards, does a like convention authorize Congress to call "deuces wild," or, more properly, "citizens born abroad are natural born citizens?"

As to the former question, Congress was compelled to act because it was known and understood that a "natural born citizen" needs must have been born in the jurisdiction of the Nation. At the same time, denial of the status of one's offspring as "natural born citizens" might have deterred qualified citizens from engaging in foreign service or the development and enhancement of commercial relationships abroad. (Consider, for example, that John Jay's service to the Nation took Jay and his young family abroad, and that three of his six children were born in Europe.) But with this question openly stated, it becomes obvious that our national legislature was not of the view that one's status as a citizen, even one's status as a "natural born citizen," was a kind of civic genetic characteristic, capable of transmission by parentage.

As to the latter question, there is no convention empowering Congress alone to alter or amend the language of the Constitution. Yes, as Article V of the Constitution provides, Congress can propose amendments of the Constitution to the States for their consideration. The sole role of Congress in the Article V amendment process is the proposal of such amendments. Congress lacks an "imposition power" to unilaterally amend the Constitution. In the case of the 1790 Naturalization act, that imposition -- making foreign-born deuces wild -- exactly describes what Congress attempted ... and what neither convention nor the Constitution authorized Congress to do.

Imagine your reaction as a youth, when your buddy, now the dealer, dealt a hand of cards; then, upon examining his own hand, called out, "deuces wild!" Now he is gaming the system to his advantage. Elementary fairness is breached. 

In the case of "natural born citizen" status, elemental constitutional fairness requires that the language of the Constitution -- not preferences personal or political -- should govern. Whether one disputes the eligibility of a Ted Cruz or a Barack Obama, the Constitution should still be trump.

Shooting A Blank: Clement and Katyal Fire a Dud in the Qualification Wars

In a post on the Harvard Law Review Forum, two well-regarded attorneys, Paul Clement and Neal Katyal, recently addressed a question that has lingered over the two most recent quadrennial presidential elections, the question being a ticklish one of eligibility to be elected President.

Setting aside more considerable qualification considerations, such as experience managing a large scale enterprise, familiarity with and competence for the duties of the office, and the like, the question they addressed pertained to one particular qualification for the Presidency stated in the Constitution. That qualification requires, to be elected, one must be a “Natural Born Citizen” of the United States. That phrase, “Natural Born Citizen,” appears nowhere else in the Constitution as originally enacted. It stands in contrast to its single exception, allowing one to be elected president though not a “Natural Born Citizen” if, “a citizen of the United States, at the time of the adoption of the Constitution.”

A number of alternative meanings of the Natural Born Citizen provision of the Qualifications Clause of Article II have been, or could be, proposed. 

In fact, a number of methods can be identified for giving meaning to any word, phrase, clause, section or article of the Constitution. Consider, for example, the contrast between a view that the Constitution is a document of fixed, determinate meaning, and a contrary view that the Constitution is an organic document the words, phrases, clauses, sections and articles of which may acquire new meaning over time.  The former view, the one of a “hide bound” Constitution, is often invoked by critics to describe the philosophy of Antonin Scalia and others that share his approach to construing the Constitution. The latter view, of the Constitution as a living, breathing and evolving document, has often been invoked to describe the philosophy of justices such as Ruth Bader Ginsberg and Stephen Breyer.

I have never worked with Neal Katyal. 

As Senior Counsel with the American Center for Law and Justice, however, I worked with Paul Clement several times. Clement cut his teeth as a law clerk for Justice Scalia. Unsurprisingly, in our casual conversation and work together at the time, I discovered that, like Scalia, like me, and like Thomas Jefferson, Clement held the view of the Constitution as a document of intentionally drawn words, phrases, clauses, sections and articles, a document of fixed and discernible meaning. 

Yes, I did just bring Thomas Jefferson, the author of the Declaration of Independence into the conversation; and, yes, I realize that he did not participate in the drafting of the Constitution. But Jefferson was an early watchman on the walls against judicial tyranny.

In a letter to Judge Spencer Roane, dated September 6, 1819, Jefferson debunked a view, asserted by the Supreme Court, that it had the position of ultimate interpretation of the Constitution, over the coordinate branches, the Legislative and the Executive. Such a construction of the Constitution created the serious risk of tyranny by the Judiciary. Jefferson explained, “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” 

I treasure Jefferson’s view – of the Constitution as a hide-bound document of fixed and discernible meaning – and his warning – that judges might treat it as a waxen plaything, softening it with the touch of their analyses and decisions until it took the shape of their desires.

But even among us hide-bounders, it appears, differences in approach to and resolution of constitutional questions will arise. Clement’s recent joint post, with Katyal, on the Harvard Law Review Forum, addressing the Natural Born Citizen provision of the Presidential Qualification Clause proves the point.

Clement and Katyal commit a regrettable error in construing our and England’s legal histories. They commit the error in seeking, as lawyers and judges will do, to provide a meaning for a constitutional provision, in particular a meaning that is one less than obvious from the language of the document.

As an initial matter, Clement and Katyal join in a popular, but unwise legal sport usually reserved to justices of the Supreme Court. (That excess on their part can be forgiven; both have served as Solicitor General of the United States, a position often referred to as “The Tenth Justice.”) That legal sport consists of artificially inducing an uncertainty about a word or provision of the Constitution.

Given uncertainty of meaning, as our courts have played the game, judges (and other armchair quarterbacks) magnanimously lend their service to the enterprise of “discovering” the intended meaning to be ascribed to the uncertain provision. 

Mark DeWolfe Howe, a legal historian, described this habit, as he observed its repetition by Supreme Court justices who rewrote the scope and meaning of the Establishment Clause in a series of decisions from the late 1940s through the early 1960s. In “The Garden and the Wilderness,” Howe skewered the enterprising justices for being artisans of the history of the law, rather than pupils of it. Though he did not use the precise term, his words and tone suggested that the pretend historians of the Supreme Court were no more to be believed than was Aaron when he told Moses that he had not fashioned a golden calf while Moses was on the mount, but had only thrown gold into the fire, and the idol fashioned itself.

Clement and Katyal would have nothing about which to write on the subject of the Natural Born Citizen language, however, unless the meaning of the phrase was, in fact, fraught with uncertainty. Given six continuous years of controversy over the question whether Barack Obama satisfied the Natural Born Citizen provision – a contentious debate disdainfully summarized as the “birther argument" – perhaps we must simply accept that a rather clear and seemingly precise phrase, “Natural Born Citizen,” is neither clear nor precise, or at least that it is only as clear and precise as Clement and Katyal will then show it to be.

In fact, what Clement and Katyal actually seek to do is to establish that a phrase of plain meaning and import was not intended as such by those that drafted and ratified the Constitution. That obvious meaning, it seems to this reader, is that one is Natural Born Citizen if one’s citizenship arises as a consequence of their natural birth within the United States. On this point, English common law is instructive. 

Every one of the newly independent States adopted English common law as a rule for the decision of cases until modified or repealed by acts of their legislatures. While we rejected the tyranny of the Crown, and disassociated ourselves from our brothers in Parliament because of their indifference to our suffering, we retained the majesty of the English common law. [For those to whom English common law is an unfamiliar concept, it is the entire body of judicial made law resulting from the decision of cases in England over the course of centuries. By adopting English common law, newly independent States generally populated with Englishmen and their descendants retained a familiar and workable body of law for the resolution of disputes.]

Under English common law, there was no such thing as a “Natural Born Citizen.” Rather, a different but related concept existed, “Natural Born Subjects of the Crown” or “Natural Born Subjects.” The concern over one's status in England as a “Natural Born Subject” existed for many reasons. A primary reason for needing certainty about status as a “Natural Born Subject” was that English law limited hereditary title and the capability to inherit properties to those who were “Natural Born Subjects.” Thus, one’s status – whether one was a Natural Born Subject – could powerfully affect the course of one’s life. And, as it turns out, under English common law, only a person born within the realm of Great Britain, within the kingdom, could lay claim to status as a “Natural Born Subject.”

As it turns out, the meaning of “natural born” in English common law is too confining for their purposes, it must be stretched. That stretching is the hallmark of their error and their erroneous conclusions regarding the eligibility of Ted Cruz, John McCain, and George Romney (Mitt’s dad) to be elected to the Presidency.

Their conclusion rests on a fallacious conflation of English statute law and English common law. 

The significance of that conflation cannot be overstated. As noted, under English common law, only persons born within the realm were entitled to status as “Natural Born Subjects.” Hard choices faced those living with such a reality. Called to service, engaged in mercantile trade, traveling for study, many reasons provoked Natural Born Subject to remove to other lands. Living abroad – even in service to country and Crown – would risk that offspring would suffer disinheritance of title and property. So Parliament necessarily, wisely, granted to specific categories of persons born abroad status as Natural Born Subjects.

In fact, Clement and Katyal gloss over this dichotomy. English statutory law, enacted by Parliament, extended “Natural Born Subject” status to additional classes of persons not within the English common law’s sweep of the term. It is from that premise – Parliament’s expansion of the scope of “Natural Born Subject” – that Clement and Katyal illogically leap. The leap is illogical because they refer to the vaunted role of English common law in understanding our early legal history and as a source work for understanding the Constitution but then invoke English statute law to give meaning to our Constitution’s “Natural Born Citizen” provision. But what transmitted, via adoption of English common law in the newly independent States of 1776, was that Natural Born Citizen status would be determined, not by parentage, but by birth within the United States (or citizenship in them at the time of the adoption of the Constitution).

The Constitution deposits all legislative power afforded to the federal government in the Congress of the United States. It defines and limits the scope of, and the subjects of, that legislative power given to Congress. Among the powers given it, Congress has sole power among the federal branches, “to make a uniform rule of Naturalization.” 

“Naturalization” converts one that was a foreigner, an alien, into a citizen. 

In the United States, whatever requirements for naturalized citizenship set by the Constitutions and laws of each of the thirteen independent States would be superseded by such “uniform rule of naturalization” as Congress might enact. And, in fact, as Clement and Katyal point out, Congress quickly acted to adopt such a uniform rule of naturalization, the Naturalization Act.

Congress quite properly exercised its Naturalization Clause power to create such uniform rules as it did. 

To the contrary, however, the decision of Congress, when it enacted the Naturalization Act of 1790, to extend Natural Born Citizen status to persons who were not, in fact, by operation of the common law, Natural Born Citizens was not a proper exercise of the Naturalization Clause power. (Congress reversed that exact position just five years later when it repealed that Act in its adoption of the Naturalization Act of 1795.) 

The essence of naturalization is to make one a citizen that is not a citizen. 

So the whole, express, power of Congress in relation to citizenship is related to naturalization, and it is limited to the task, making, as it were, citizens out of whole cloth. But therein lays the rub for Clement and Katyal, while Parliament had power to grant Natural Born Subject status to persons denied that status by operation of common law, our Legislative Branch is one of limited and defined powers. 

For Clement and Katyal to succeed, they must identify a legitimate ground upon which Congress could expand the meaning of the Natural Born Citizen provision. Though decades of sifting have sought it out, there is no Revisionary Power Clause granted such power to Congress, or the Courts, or the President, not anywhere in the Constitution. There is, of course, Article V, with its established processes for amendment the Constitution. But the Naturalization Act was not such an amendatory exercise.

So, the Naturalization Act notwithstanding, the question will remain, in each case of a challenged qualification, was the candidate born in the United States to parents not present in the United States on diplomatic service from another land. On that analysis, Clement and Katyal reach the wrong conclusions about the eligibility of Ted Cruz, John McCain, and George Romney to be elected President. While each of these would certainly be entitled to claim citizenship under the Naturalization Act, none is a Natural Born Citizen.

The conclusion Clement and Katyal reached regarding Barry Goldwater’s eligibility, however, might be supported for an oddly different reason. Goldwater was a citizen of Arizona at the time that Arizona, by admission as a State of the Union, adopted the United States Constitution. His eligibility, nearly two hundred years after the ratification of the Constitution, might well be justified under the sole exception to the Natural Born Citizen provision, namely that one must be a citizen of the United States at the time of the adoption of the Constitution.