At dinner last week with two friends, one of whom is a law professor, I blithely asserted that Ted Cruz was eligible to be President, and that no serious person believes that "natural-born citizen" excludes those who were entitled to U.S. citizenship at birth, even though born outside the United States, by virtue of having a U.S. citizen as a parent.
An article in The Washington Post by constitutional law professor Mary Brigid McManamon has caused me to have a re-think. Like many people with a passing geeky interest in the subject, I had heard the basic arguments as to why Cruz is not ineligible, specifically that the English common law and early acts of Congress make clear that "natural-born" is to include those born abroad to a U.S. parent. The arguments were laid out in a Harvard Law Review Forum post by two former heads of the Office of the Solicitor General. But in my mind, McManamon easily and successfully demolished them in her WaPo piece.
Most glaringly, McManamon takes the authors to task for citing the need to refer to the common law, but then themselves referring to 18th-century English statute. Even a first year law student should be able to tell you that they are not the same thing, and McManamon was absolutely correct when she wrote,
First, although Katyal and Clement correctly declare that the Supreme Court has recognized that common law is useful to explain constitutional terms, they ignore that law. Instead, they rely on three radical 18th-century British statutes. While it is understandable for a layperson to make such a mistake, it is unforgivable for two lawyers of such experience to equate the common law with statutory law.
The authors of the HLRF piece, Neal Katyal and Paul Clement, themselves wrote,
As to the British practice, laws in force in the 1700s recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used “natural born” to encompass such children
and cite United States v. Wong Kim Ark (the case that confirmed that the Fourteenth Amendment granted U.S. citizenship to all those who were born in the U.S.A.) as their authority. However, not only does Wong Kim Ark confirm that it was, at best, sloppy to conflate common law and in force 17th-century statutory law, Wong Kim Ark confirms, in fairly explicit terms, that the laws referred to by Katyal and Clement were a "revolutionary departure", as McManamon puts it, from the common law. (Click here to jump past this lengthy quote).
Chancellor Kent, in his Commentaries, speaking of the "general division of the inhabitants of every country under the comprehensive title of aliens and natives," says:
"Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. . . . To create allegiance by birth, the party must be born not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that, during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered."
2 Kent Com. (6th ed.) 39, 42. And he elsewhere says:
"And if, at common law, all human beings born within the ligeance of the King, and under the King's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land."
2 Kent Com. 258, note.
Mr. Binney, in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said:
"The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens o the United States are, with the exceptions before mentioned," (namely, foreign-born children of citizens, under statutes to be presently referred to)
"such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States."
"The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. "
(Note above how Binney equates "born in the country" with "natural-born").
This paper, without Mr. Binney's name and with the note in a less complete form and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Amer.Law Reg.193, 203, 204.
IV. It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.
But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France," and
"mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;"
and children born in a foreign country, of a French father who had not established his domicil there nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by "a favor, a sort of fiction," and Calvo, "by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality." Pothier Trait des Personnes, pt. 1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant, (1802) 3 Journal du Palais, 384; S.C., S. Merlin, Jurisprudence, (5th ed.) Domicile, § 13; Prefet du Nord v. Lebeau, (1862) Journal du Palais, 1863, 312 and note; 1 Laurent Droit Civil, no. 321; 2 Calvo Droit International, (5th ed.) § 542; Cockburn on Nationality, 13, 14; Hall's International Law, (4th ed.) § 68. The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799. Constitutions et Chartes, (ed. 1830) pp. 100, 136, 148, 186.
The Code Napoleon of 1807 changed the law of France and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code
"appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe -- de la vielle regle francaise, ou plutot meme de la vielle regle europienne -- according to which nationality had always been, in former times, determined by the place of birth."
1 Demolombe Cours de Code Napoleon (4th ed.) no. 146.
Note the point made that it was Roman law, not the common law that provided citizenship by descent rather than by birth.
The judgment further discusses the fact that it required legislation by the Parliament of England to grant inheritance to the children of the King of England who were born "beyond the sea". Approvingly quoting Horace Binney once again
"There is nothing in the statute which would justify the conclusion that it is declaratory of the common law in any but a single particular, namely in regard to the children of the King; nor has it at any time been judicially held to be so. . . . The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle."
McManamon then offers fairly convincing arguments as to why the framers' intent was that only someone born in the United States could become President.
But when one reviews all the relevant American writings of the early period, including congressional debates, well-respected treatises and Supreme Court precedent, it becomes clear that the common-law definition was accepted in the United States, not the newfangled British statutory approach.
And finally, McManamon states that the debates around the first naturalization act make it explicit that the phrase "natural-born" only means those born in the United States.
The debates on the matter reveal that the congressmen were aware that such children were not citizens and had to be naturalized; hence, Congress enacted a statute to provide for them. Moreover, that statute did not say the children were natural born, only that they should “be considered as” such.
This isn't the whole picture, of course. McManamon doesn't discuss what purpose the phrase "considered as natural born" was meant to achieve. Then again, as she points, out, the 1790 act was repealed and replaced by a 1795 act, authored by Madison. Madison dropped the words "natural born", and they never again appeared in a naturalization statute.
Some have cited the case of John McCain as evidence that the issue is moot, however McCain was born into a military family in Panama. English common law would have made the child born to an English soldier in the equivalent situation an English subject, so it is pretty clear that the framers of the Constitution would have understood that the children of American soldiers, as well as diplomats, stationed abroad in the service of their country, would be "natural-born citizens".
Last week, Jonathan Adler, also in The Washington Post presented a somewhat unconvincing argument as to why Cruz is eligible, in an update to which he asserted "it was accepted that George Romney could run for President despite having been born in Mexico". In fact, questions were raised about Romney's eligibility as soon as he announced his candidacy. Adler's argument is particularly unconvincing if read from the perspective of a constitutional originalist, such as Scalia.
It seems to me that Cruz should be eligible to be President, if the phrase "natural-born citizen" is read in its natural and ordinary meaning. However, Scalia is keen to remind everyone that, in his view, constitutional interpretation should not be carried out using today's natural and ordinary meaning; instead, he believes we ought to look to the "original meaning".
Mary Brigid McManamon has laid down a very solid case that the "original meaning" of "natural-born citizen" excluded those born outside the United States. However, I have no doubt that Scalia would, if it were ever litigated, engage in whatever contortions that would be necessary to get his preferred outcome.
In the horrific event that Ted Cruz were elected President of the United States, the courts would find Cruz to be eligible, of that I have no doubt, irrespective of what was the intent of the framers. In this event, conservatives ought to be up in arms (metaphorically; these days, given events in Oregon one needs to be clear on this point). But of course they won't.
Because only liberals "trample on the Constitution".