What Does "Natural Born Citizen" Mean? (3)

Part III: My Take

Overview

It is my opinion that the phrase "natural born citizen" in the U.S. Constitution was probably intended by the majority of those involved in drafting and adopting the Constitution to include children born abroad of U.S. citizens as "citizens at birth" requiring no naturalization (i.e., not subject to naturalization by statute, that is, "natural born."). I cannot prove this, but ultimately, I think it would be harder to prove the opposite position. I come to that conclusion because my review leads me to believe that:

• It follows from both Vattel's "Law of Nations" (§215) and Blackstone's commentary on British Common Law of the time;
• It's a logical view given passage of such language by the First Congress in the 1790 Naturalization Act; 
• This seems to be the common view among actual Constitutional scholars; 
• It seems to me that proponents of "strict interpretation" rely for their arguments on incomplete and/or erroneous references and inconsistent logic.

So let's look closer at these points.

Natural and Common Law Roots

Nearly everyone seems to agree that one or both of these form the basis for interpreting the Constitution. As we have seen, the Constitution may specifically mention Vattel's work "The Law of Nations," John Marshall quoted its §212 and §213 in his partial dissent in the Venus case and the background information in Minor v. Happersett ties §212 to the "common law":

"At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners."

Obviously, this does not specifically relate to "natural born," which occurs a couple of paragraphs later where the phrase from the 1790 Naturalization Act was referenced. But the link to common law also incorporates the tradition of British common law wherein Blackstone has said:

"But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception."

So the traditions of both have been used to interpret the Constitution because these were the legal theories familiar to and used by the Founding Fathers. In this case, Vattel asserted that foreign born children inherited the citizenship status of their fathers at birth and Blackstone equated that to "natural born."

Simple Layman's Logic

The 1790 Naturalization Act included foreign born children of citizens in the "natural born" category. The First Congress passed this act, including 43% of the signers of the Constitution, and George Washington signed it. I find it hard to believe these men did not a) know what their duties were under the Constitution (i.e., what Article II, Section 8, Clause 4 allowed and required) and b) how the Constitution viewed "natural born." Do I believe they were unanimous in how they viewed these things? No, I don't. But the exceptions brought to bear by the "strict interpreters," specifically letters by John Jay and possibly James Madison, requires one to believe the Congress monumentally erred; indeed, some hold this view as the reason the 1795 Act was required to repeal the 1790 Act. I find this logic less than credible and believe that the fact that the 1795 Act refers to citizens (not "natural born citizens") means that the Act has nothing at all to do with "natural born citizens" and the fact that "natural born" is missing means only that it's not addressed.

Consensus View

Not being a Constitutional scholar myself, I can't authoritatively say that the consensus view among Constitutional scholars is opposed to the "strict interpretation" view; it is the conclusion I come away with after doing the research for this series. Surely there are scholars who hold each interpretation, but accepting foreign born seems to me more common. In addition, opponents of foreign born seem to have the same inconsistency issues as laymen. For example, this OpEd says Blackstone denied natural born citizenship to foreign born children; this is not strictly true as shown in my first post. This OpEd states that no legal thinking of the 1780s and 1790s supported foreign born; Congress' approval of the 1790 Naturalization Act suggests that that's not correct. This Harvard Law Review article presents the opposite case.

Inconsistent Arguments

I've hinted at this previously, but, for me, it's the really the principle argument against the "strict interpretation" view. Proponents of the strict view regularly commit five "sins" that, in my opinion, substantially diminish their arguments:

• They cherry pick quotes from Supreme Court cases. For example, they cite Minor v. Happersett where it quotes Vattel §212 but ignore the part a couple paragraphs later that I put in the first post that specifically mentions "natural born."
• They pick quotes from one or two Founding Fathers whose letters suggested they disagreed with the policy (e.g., John Jay, first Chief Justice of the Supreme Court) as if that must have represented the majority view.
• They rely extensively on argumentum ad ingnoratium, the argument from ignorance. Two examples: 1) When they can't show what "natural born" means, they assume it must mean what they assume; 2) When legislation says nothing about "natural born" they often assert that that has some implied meaning about natural born.
• They tend to blur references to "citizen" and "natural born citizen," erroneously thinking this supports their arguments. An example is the 6 times the Supreme Court ruled on "natural born." In fact, the Supreme Court has never ruled specifically on "natural born" and these cases determine regular citizenship issues.
• They circulate images and documents that reflect opinions supporting their position, but often don't provide sources of the information so that it can be verified and sometimes don't even know they're either wrong, inconclusive, actually contradictory. One example is arguing that Congress has no role in defining "natural born" and then using legislation as an argument in their favor. 

There is a corollary to the last point: They seldom present results of their own investigations, choosing to rely on arguments from what they present as authoritative sources. Many times, those sources exhibit the same flaws listed above.

Summary

So that's pretty much it. In this case, the "Truth" is uncertain, but it seems to me that the "strict interpretation" has the weaker position. I would personally like to see the Supreme Court rule on the issue, both on the definition of "natural born citizen" and on the role of Congress. Since the courts have so far resisted attempts to adjudicate the question of what "natural born citizen" means when given the opportunity, this seems doubtful. Until then, say when a candidate loses an election to a foreign born candidate and has clear "standing" to sue, I expect "natural born citizen" will equate to "citizen at birth" as defined in 8 USC 1401. As of now, barring some explosive discovery or disclosure, that definition appears to cover Ted Cruz.

Addendum (19 February 2016)

I recently encountered a legal theory of which I was unaware when I wrote these posts: Non-judiciable political questions. Under this theory, ironically when you consider strict interpreters often disavow a role for Congress, Congress is the principal arbiter of political questions under it's authority over elections. In 2008, the United States District Court for the Northern District of California dismissed a challenge to the eligibility of Senator John McCain to be president, relying in part on this theory. Here is what the judge said:

It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review — if any — should occur only after the electoral and Congressional processes have run their course. Texas v. United States, 523 U.S. 296, 300–02 (1998).

Tellingly, and also somewhat ironically, this decision also indirectly seems to support the natural born citizen (i.e., citizenship by birth) language of the 1790 Act with this:

At the time of Senator McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment.  Under this view, Senator McCain was a citizen at birth.

The court had went on to state that "it was probable" that John McCain was a natural born citizen.
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* Marshall in the Venus quoted either the original French or an English translation that had not yet rendered the French "indigenes" as "natural born."