From Natural Born “Subjects” to Natural Born “Citizens”

There’s been lots of excellent blogging on the subject of whether Senator Ted Cruz was a “natural born citizen” of the United States and therefore eligible to be President.  I won’t summarize it here, but recommend Mike Ramsey’s two posts on here and here on The Originalism Blog, Garrett Epps’s post here on Atlantic.com, Sandy Levinson’s post here on Balkinization, and Steven Lubet’s here on Salon.com.  However, there is one additional theoretical possibility that I did not see mentioned, though perhaps it appears elsewhere.

Mike Ramsey helpfully identifies the natural law conception of the original meaning of “natural born citizen,” which he describes as follows:

  • The “natural” in “natural born” citizen/subject still meant in the eighteenth century (as it had much earlier) a citizen/subject by the law of nature (as opposed to a citizen/subject by statute). For people in the English tradition that would have meant people who were citizens under common law.  That in turn meant only people born within the sovereign’s territory (and children of English ambassadors).  In this view, the statutory expansions gave some children born abroad the same rights and duties as natural born subjects, but those children remained nonetheless only statutory subjects (since a statute could not alter the law of nature).  Notably, only this version gives content to the word “natural” in “natural born.”

And distinguishes that from this conception of original meaning:

  • Another way to look at it is that eighteenth-century English practice established the rule that parliament could expand the category of “natural born” by statute….  [I]n any event “natural born” had come to mean those children parliament made subjects at birth, whoever they were.  Translated to U.S. constitutional terms, that would mean whomever Congress chooses (from time to time) to make citizens at birth are natural born.

Although he thinks the question is a close one, he ends up concluding that the original meaning was the latter not the former.  “[T]his approach is consistent with the eighteenth-century English parliament’s view that it could define natural born subject as it pleased (and indeed could tinker with the definition for policy reasons). In sum, I think — contrary to the canons! — “natural” really is surplusage used contrary to its ordinary meaning.”

But there is another theoretical possibility that reconciles the 1790 Naturalization act with the concept of natural born citizen.  This possibility takes seriously the switch from the English “natural born subject” to the American “natural born citizen,” which was a brand new term minted for a new form of government informed by a new form of popular sovereignty in which the people are the sovereign.

As I have explained elsewhere, in Chisholm v. Georgia, both Chief Justice Jay and Justice Wilson conceived of this sovereignty as residing in the individual, rather than in a collectivity known as “the People,” which is why they thought an individual citizen could sue a state for breach of contract.  In my Seegers Lecture on Jurisprudence at Valparaiso University School of Law on October 3rd, I will elaborate on the implications of this individual conception of popular sovereignty for the concept of “the consent of the governed.”

But an individual conception of sovereignty would also affect who is a natural born citizen. In England, one would be a natural born subject of the King if born on English soil over which the King has jurisdiction.  But, as Sandy Levinson notes: “a child born to British monarchs while travelling abroad . . . would be eligible to become king or queen.”  In other words, because the King is the sovereign, his offspring are his natural born subjects as his children who owe him a natural duty of obedience, just as do those who are born within his territorial jurisdiction.

By contrast, in the United States, if each individual citizen is sovereign, so too are their offspring “natural born citizens.” Because the term “natural born citizen” was invented for use in the Constitution, its public meaning was dictated by theoretical considerations such as these, rather than either by English legal thought or by widespread public usage.  This individualist understanding of natural born citizen simply adapts the English usage to American political theory by recognizing the difference in who is the sovereign in each system.

If this is correct, then the term “natural” in “natural born citizen” is not surplusage, and, in the 1790 Naturalization Act, Congress might well have merely been codifying the underlying popular sovereignty conception of natural born citizen as children born to sovereign American citizens.