Birthers & the Original Meaning of “Natural Born Citizen”

I.  Birther Types

It has recently come to my attention that the “birther” movement is actually slightly more sophisticated than I initially thought.  In addition to the Type I Birthers, who deny the fact[1] that Obama was born on United States soil, there are Type II Birthers who accept this fact.  The Type II’s argue instead that the Natural Born Citizen Clause, as originally understood, was a rule of jus sanguinis,[2] barring from the Presidency anyone who (like Obama) was born of an alien father.[3] Though I suppose these Type II’s are more interesting, since they at least raise an intriguing legal argument[4] instead of trying to deny largely-irrefutable facts, I still don’t find their position convincing.  Rather, it seems pretty clear to me that the original meaning[5] of “natural born citizen” encompassed persons born of at least one alien parent upon US soil.

II.  “Natural Born Citizen” and English Common Law

In seeking to ascertain the original meaning of “natural born citizen”, it is helpful to recall that the Constitution was written & discussed in a legal context shaped for generations by English common law.  As Lawrence Solum notes,

[I]t seems clear that [natural born citizen] was derived from the related phrase “natural born subject,” which had a technical meaning in English law and constitutional theory.[6]

Therefore, when attempting to ascertain the original meaning of the Natural-Born Citizen Clause, it is advisable to focus on the common-law[7] legal meaning[8] of “natural-born subject” during the Founding era.[9] In particular, we must inquire whether “natural-born subject” encompassed those born of one or more alien parents upon English soil.  It seems pretty clear to me that it did.

The leading English precedent[10] regarding the question of birthright citizenship for aliens’ children was the 1608 decision in Calvin’s Case,[11] in which Sir Edward Coke provided an extensive discussion of the English law of citizenship.  Regarding the children of aliens, Calvin noted:

Sherley a Frenchman, being in amity with the King, came into England, and joined with divers subjects of this realm in treason against the King and Queen, and the indictment concluded contra ligeant’ sue debitum; for he owed to the King local obedience, that is, so long as he was within the King’s protection; which local obedience being but momentary and uncertain, is yet strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject….[12]

A 1698 English statute likewise referred to “every person or persons” born of at least one alien parent “within the Kings [sic] Dominions” as “the Kings naturall [sic] borne Subject or Subjects.”[13]

And finally, William Blackstone’s magisterial Commentaries on the Laws of England echoed this understanding of “natural born subject”:

The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.[14]

Given the above sources, and particularly the Commentaries’ wide American readership[15] during the Founding era, it seems reasonable to conclude that, in the Founding era, the meaning of “natural born subject” (and hence “natural born citizen”) encompassed persons born of an alien parent upon US soil.

III.  Birthers & the (Ir)relevance of Vattel

Type II birthers, of course, reject the above analysis.  In support of their position, they instead cite[16] the following passage from Vattel’s Law of Nations:

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. … The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. … I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.[17]

Admittedly, this excerpt does endorse a jus sanguinis rule of citizenship.  However, what’s most significant about said excerpt isn’t its content, but rather the fact that it was excerpted from the 1797 edition of Vattel’s famous work.  In all the preceding English-language editions, the term “indigenes” was used in lieu of “natural-born citizens”.[18] Although birthers attempt to explain away these previous editions by arguing that “indigenes” & “natural-born citizens” purportedly meant the same thing,[19] such arguments are irrelevant from the standpoint of original meaning.  The Constitution was written in English, not French; as such, in order to demonstrate that the original public meaning of “natural-born citizen” incorporated a rule of jus sanguinis, one must show a Founding-era association between the English-language phrases “natural born citizen” or “natural born subject” and jus sanguinis.  However, no such association can be shown, given that the English editions of The Law of Nations extant during the Founding era did not even mention “natural born citizen” – let alone equate that term with jus sanguinis.  Nor do Type II birthers cite any Founding-era dictionaries equating “indigenes” with “natural born citizen” (or “natural born subject”).  It is therefore seems unlikely that the aforementioned Vattel excerpt accurately reflects the original meaning of “natural born citizen”.

QED, Barack Obama is eligible for the Presidency under the original meaning of the Natural Born Citizen clause.

IV.  Postscript:  McCain & the NBC

As has been previously noted,[20] John McCain also faced challenges to his eligibility under the Natural Born Citizen Clause.  In particular, Gabriel Chin has argued that, owing to McCain’s birth in the Canal Zone & the peculiarities of the citizenship laws then-applicable thereto, McCain was not a citizen at birth, and therefore could not be deemed a “natural born citizen.”[21] However, not only is the Chin’s statutory interpretation disputable;[22] but, along the lines of the aforementioned analysis, it could also be argued that the Founding-era common-law meaning of “natural born subject” (and hence the original meaning of “natural born citizen”) encompassed children born of military personnel stationed abroad.[23] The relevant case is Craw v. Ramsey, which noted that:

If the King of England enter with his Army hostilly the territories of another prince, and any be born within the places possessed by the Kings Army, and consequently within his protection, such person is a subject born to the King of England, if from parents subjects, and not hostile.[24]

On the other hand, notwithstanding the above statement, it appears the status of such children as natural-born subjects was sufficiently unclear that Parliament found it necessary to naturalize them via statute a few decades later.[25] As such, it remains unclear whether, in the Founding-era, the common law definition of “natural born subject” included children born of military personnel stationed abroad.[26]


[1] The birthplace & parentage of Barack Obama are clearly demonstrated by both his birth certificate from the State of Hawaii, as well as contemporaneous birth announcements in two Honolulu newspapers.  See Born in the U.S.A., FACTCHECK.ORG, Aug. 21, 2008, http://www.factcheck.org/elections-2008/born_in_the_usa.html (discussing authenticity of Obama’s birth certificate); also Births, Marriages, Deaths, HONOLULU ADVERTISER, Aug. 13, 1961, at B-6, available at http://whatreallyhappened.com/IMAGES/obama-1961-birth-announcement-from-honolulu-advertiser0000.gif (“Mr. and Mrs. Barack H. Obama, 6085 Kalanianaole Hwy., son, Aug. 4.”); also Marriage Applications Births–Deaths, HONOLULU STAR-BULLETIN, Aug. 14, 1961, at 24, available at http://www.thepostemail.com/wp-content/uploads/2009/12/HSB%20Birth%20Announcement%20081461.rar (“Mr. and Mrs. Barack H. Obama, 6085 Kalanianole Highway, son, August 4.”).

[2] I.e., “The rule that a child’s citizenship is determined by the parents’ citizenship.”  See BLACK’S LAW DICTIONARY 941 (9th Ed. 2009).

[3] See, e.g., John Charlton, Irrefutable Authority Has Spoken, THE POST & EMAIL, Oct. 18, 2009, http://www.thepostemail.com/2009/10/18/4-supreme-court-cases-define-natural-born-citizen/.

[4] Albeit one that has thus far been rejected by the courts.  See Ankeny v. Governor of Ind., 916 N.E.2d 678 (Ind. Ct. App. 2009), available at http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf.

[5] Admittedly, there are those who contend that “natural born citizen” had no original meaning.  See, e.g., Jill A. Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 YALE L.J. 881, 887-888 (1988) (“[A]t the time of the framing of the Constitution, there was no common understanding of what ‘natural born citizen’ meant.”)  This overstates the case, however, by confusing vagueness with ambiguity.  An ambiguous term, such as “cool”, has more than one meaning.  A vague term, like “tall”, does have a generally-accepted core of meaning; but it also admits of borderline cases where its applicability is uncertain.  See Solum, supra note 7, at 69-73.  In English & colonial law, term “natural born subject” may have been vague with regard to borderline cases like the children born abroad of English subjects.  See Pryor, supra, at 883 n.8.  However, notwithstanding such ambiguity, it was generally understood that persons born upon English soil were natural-born subjects (except for children of ambassadors or invading enemy aliens).  See infra part II.  It therefore seems more accurate to characterize “natural born citizen” as vague, not ambiguous:  Though it has a core, original meaning, its applicability in borderline cases (e.g., children of citizens born abroad) is unclear.  That said, such an understanding is not incompatible with Pryor’s approach of defining “natural-born citizen” via statute; rather, constitutional “construction” via action by the political branches is a plausible approach to addressing ambiguity.  See Keith Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL’Y 599 (2004).

Note that even under Pryor’s approach of defining “natural born citizen” with reference to citizenship law at the time of birth, Obama would be deemed a “natural born citizen”, both under Supreme Court precedent & then-current statutory law.  See United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) (“The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens….”); also Act of June 27, 1952, Ch. 477, 66 Stat. 163, 235, Title III, § 301(a) (“The following shall be nationals and citizens of the United States at birth: (1) a person born in the United States, and subject to the jurisdiction thereof….”).

[6] Lawrence B. Solum, Originalism and the Natural Born Citizen Clause 6 (Illinois Public Law and Legal Theory Research Paper, No. 08-17, 2008), available at http://ssrn.com/abstract=1263885.

[7] One must distinguish between the adoption of English common law in the United States (both before & after independence), and reference to common law definitions.  At the state level, adoption of the common law did vary; at the federal level, the existence of a federal common law of crimes was, in particular, notoriously disputed.  See Pryor, supra note 2, at 887 (“[T]he extent to which the colonies adopted British nationality law varied widely.”); also James Madison, Report on the Virginia Resolutions, reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 546, 561-567 (J. Elliot ed. 1836) (critiquing the notion of a federal common law of crimes).  This is, however, independent of the referencing English common law definitions when seeking to determine the meaning of legal terminology; one can disagree about the extent to which the common law was in force at the federal and/or state levels in the Early Republic, while still conceding the relevance of English common law definitions to the Constitution of a country whose legal system derived from England’s.  As noted in United States v. Wong Kim Ark, 169 U.S. 649 (1898),

“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several states each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes.” “There is, however, one clear exception to the statement that there is no national common law. The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

Id. at 655 (quoting Smith v. Alabama, 124 U.S. 465, 478 (1888)).

[8] Id. (“The [Natural Born Citizen] clause nonetheless could have had a conventional semantic meaning determined by the linguistic practice of those learned in the law in the late eighteenth century – so long as the division of linguistic labor made the ‘technical meaning’ accessible to ordinary citizens.”).

[9] I.e., the years preceding & immediately following the drafting & ratification of the Constitution.  See Lawrence B. Solum, Semantic Originalism 2 (Illinois Public Law and Legal Theory Research Paper, No. 07-24, 2008), available at http://ssrn.com/abstract=1120244.

[10] Regarding the significance of Calvin’s Case, see Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case (1608), 9 YALE J.L. & HUMAN. 73, 139-140 (1997); also Bernadette Meyler, The Gestation of Birthright Citizenship, 1868-1898 States’ Rights, The Law of Nations, and Mutual Consent“, 15 GEO. IMMIGR. L.J. 519, 528-530 (2001).

[11] Calvin’s Case, 7 CO. REP. 1a, 77 ENG. REP. 377 (K.B. 1608).

[12] Calvin’s Case, 7 CO. REP. 1a, 6a, 77 ENG. REP. 377, 384 (K.B. 1608).

[13] See An Act to enable His Majesties naturall borne Subjects to inherite the Estate of their Ancestors either lineall or collaterall notwithsttnding their Father or Mother were Aliens, 11 Will. 3 c. 6 (1698), reprinted in 7 STATUTES OF THE REALM 590 (John Raithby, ed. 1820).

[14] WILLIAM BLACKSTONE, 1 COMMENTARIES 361-362 (William S. Hein & Co. 1992) (1765).

[15] For example, during the Virginia ratifying convention, James Madison described Blackstone’s Commentaries as “a book which is in very man’s hand….”  See 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 501 (J. Elliot ed. 1836) (statement of James Madison).

[16] See, e.g., Charlton, supra note 3.  Though this source additionally cites various Supreme Court cases for authority, the fact that such decisions post-date the ratification of the Constitution means that they provide little evidence of original meaning.  See Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional, 90 CAL. L. REV. 291, 380-382 (2002) (discussing the weakness of post-ratification precedents relative to evidence contemporaneous with the drafting & ratification of constitutional provisions).

[17] See 1 EMMERICH DE VATTEL, THE LAW OF NATIONS § 212, at 101 (London, 1797) (1758).

[18] See John Greschak, What is a Natural Born Citizen of the United States?, Dec. 2, 2008, http://www.greschak.com/essays/natborn/index.htm.

[19] See Mario Puzzo, Sep. 8, 2009, 9:15 PM Comment on The Natural Born Citizen Clause of Our U.S. Constitution Requires that Both of the Child’s Parents Be U.S. Citizens At the Time of Birth, A PLACE TO ASK QUESTIONS TO GET THE RIGHT ANSWERS, Sep. 8, 2009, http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html?showComment=1252469709665#c6930670571529813677 (“Someone during the 1797 English translation substituted the phrase ‘natural born Citizen’ for the words ‘natives’ and ‘indigenes.’ But the three words [sic] all meant the same thing, i.e., someone born in the county to citizen parents. Hence, the conclusion is that Vattel provided the definition of what a ‘natural born Citizen’ is….”).

[20] Avenging Sword, In Re Birthers, Sept. 9, 2009, http://aleksandreia.wordpress.com/2009/09/09/in-re-birthers/.

[21] Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship (Arizona Legal Studies Discussion Paper No. 08-14, 2008), available at http://ssrn.com/abstract=1157621.

[22] See, generally, Stephen E. Sachs, John McCain’s Citizenship: A Tentative Defense (Aug. 19, 2008), available at http://ssrn.com/abstract=1236882.

[23] This possibility was referred to obliquely by Stephen Sachs.  See id. at 8.

[24] Craw v. Ramsey, 124 Eng. Rep. 1072, 1075 (C.P. 1670).

[25] An Act to naturalize the Children of such Officers and Souldiers & others the natural borne Subjece of this Realme who have been borne abroad during the Warr the Parents of such Children haveing been in the Service of this Government, 9 Will. 3 c. 20 (1698), reprinted in 7 STATUTES OF THE REALM 380-381 (John Raithby, ed. 1820).

[26] A similar problem of vagueness afflicts the more general case of children born abroad to US citizens.  As noted by Sachs:

[T]he status of foreign-born children was unclear at common law. When Parliament considered the question in 1343, it determined that members of the royal family born abroad, who would otherwise be ineligible to inherit lands in England, should be considered as English subjects. “[A]s regards other children,” it was agreed “that they should also inherit wherever they are born in the service of the king.” Agreement was less forthcoming as to the children of ordinary subjects, but eight years later, Parliament enacted a statute generally granting inheritance rights to English children “born without the Ligeance of the King.” Scholars have since disputed whether this statute, and the several that followed it, were merely declaratory of the common law or instead augmented it.

Sachs, supra note 22, at 7 (footnotes omitted).

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