What Does "Natural Born Citizen" Mean? (2)

Part II ― Thoughts On The Role of Congress

Introduction

This post is a continuation of an earlier post discussing my views on the meaning of the term "natural born citizen" as used in Article II, Section 1, Clause 5 of the U.S. Constitution. Since Congress is the principal legislative body designated by the Constitution, it must have a role to play in determining adherence to the "natural born" constraint.

Disclaimers

Refer to the earlier post for the complete statement. I will reiterate here that this review is just that: A review of what I have learned and how I view the issue; it makes no absolute assertions.

Foundational Framework

I am inclined to regard the Constitution as what we referred to as a "programmatic document" in land management. What that means is that I take it to define goals and objectives for management of government as well as some standards that must be honored. One of the goals was clearly regulating immigration and naturalization; to that end, Congress was required to produce uniform rules of naturalization (Article I, Section 8, Clause 4).

Uniform Rule of Naturalization

In my opinion, this is one of the fundamental places where the arguments of the "strict interpretation" group collapse. This is a Constitutional mandate for Congress as shown above, and Congress is further required 

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Article I, Section 8, Clause 18). 

In order to fulfill this mandate, the First Congress of the United States passed the very first naturalization act (Naturalization Act of 1790). It is clear that Article I, Section 8, Clause 4 was in view because the chapter title of record reads "An Act to establish an uniform Rule of Naturalization." This Act was signed into law by America's first president, George Washington. This is the only law ever enacted by Congress using the phrase "natural born citizen" and it says this:

"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:  Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:  Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed. (emphasis added)

It seems self-evident to me that the first Congress understood their role under the Constitution and believed they were empowered to define "natural born," suggesting that even three years after adoption of the Constitution it was not clear because a precise definition is not found in the Constitution. Since "naturalization" is the process of conferring citizenship on a foreigner, this law effectively declared who needs such a process and who becomes a citizen without it. 

I have pointed out that George Washington signed the 1790 Act into law. To me, that alone suggests that some, if not most, of the Founding Fathers accepted the jus sanguinis doctrine and recognizing that those children required no naturalization*. Another thing that seemed interesting to me was how many members of that first Congress signed the Constitution? Without trying to sound snarky, it naturally seems reasonable to assume that the signers of the Constitution would know what they meant by a) "natural born" and b) Article I, Section 8, Clause 4. Answer: 9 senators and 8 representatives were in that Congress. That is 43% of the men who signed the Constitution.

The 1790 Act was repealed in 1795 and the natural born language was not retained; however, the connection to Article I, Section 8, Clause 4 of the Constitution was retained. The "strict interpreters" frequently point out the repeal and assume that means "natural born citizen" reverted to (their presumed original meaning of) only jus soli. I have seen no evidence that the Congress explicitly wanted to revoke jus sanguinis and am more inclined to think they just didn't see a need for a specific definition for a commonly accepted legal doctrine. It seems to me that this is supported, at least in part, by Minor v Happersett:

"Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided "that any alien, being a free white person," might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens. These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since." (emphasis added)

Commentary on this Part

I find the notion that that jus sanguinis, as passed on from Vattel, through the Constitution and the 1790 Act, even, in fact, to Minor v Happersett has ever been repealed or abandoned. Indeed, nearly one half of the Founding Fathers (46% if we include George Washington)** apparently agreed to it and passed it into law. That Act was repealed, but it does not necessarily follow that it was repealed specifically to vacate that language. In fact, the 1795 Act and subsequent legislation seem to be concerned more with which aliens and native born people** could become citizens with the same basic rights as natural born citizens (excepting being elected President, of course).

The obvious problem is that "natural born citizen" does not have a context-free meaning. Perhaps this was intentional, given the newness of American government and the complexity surrounding issues of people in the land. Some Founding Fathers owned slaves; these were considered property not citizens, yet Frederick Douglass was a black Founding Father. The young nation was at war with American Indian tribes, yet someday, if the nation survived, they would become something else. I don't see the Constitution as a "living document," but that may not mean that some provisions may not have been written to provide room for growth as the fledgling nation grew.

At any rate, the notion I've heard by some that Congress has no role in determining who is a citizen at birth (the modern expression for "natural born" and meaning that no secondary naturalization process is required) seems absurd on its face.

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* In fact, Congress indirectly made this point in 2008 when they resolved to deem John McCain, born in the Panama Canal Zone, a foreign country, a natural born citizen eligible to be President. Those born to U.S. citizens in the Canal Zone weren't statutorily recognized as citizens until 1952. 
** President: George Washington; Senate: William Samuel Johnson, Richard Bassett, George Read, William Few, John Langdon, William Paterson, Rufus King, Robert Morris, Pierce Butler; House: Roger Sherman, Abraham Baldwin, Hugh Williamson, Daniel Carroll, George Clymer, Thomas Fitzsimons, Nicholas Gilman, James Madison.
*** It took the 14th Amendment in 1868 to recognize native born slaves and their children as citizens of any sort, the 19th Amendment in 1920 to recognize the voting rights of women, and 1924 for native born American Indians to be recognized as U.S. citizens (though they would wait until 1957 to have the universal right to vote).