Wednesday, January 13, 2016

Ramsey vs. McManamon on the Original Meaning of "Natural Born"

Michael D. Ramsey, University of San Diego School of Law, has posted The Original Meaning of “Natural Born.”  (H/t: Legal Theory Blog.)
Article II, Section 1 of the U.S. Constitution provides that no one but a “natural born Citizen” is eligible to be President of the United States. Modern conventional wisdom generally holds that the phrase “natural born Citizen” includes anyone made a U.S. citizen at birth by U.S. statutes or the Constitution. But that conventional wisdom is, on its face, open to doubt. If anyone born a U.S. citizen is eligible, the word “natural” in the eligibility clause is superfluous. Further, in general in eighteenth-century legal language, natural meant the opposite of “provided by statute” (hence “natural law” and “natural rights”). And plausible arguments can be made for a narrow meaning of “natural born” on the basis of either traditional English common law or eighteenth-century continental public law. To this point, modern scholarship has provided no comprehensive response to these objections.

Nonetheless, as matter of the Constitution's original meaning, the conventional wisdom is correct. This article defends a broad view of the original meaning of the eligibility clause on the basis of eighteenth-century English parliamentary practice. The key to understanding the eligibility clause is Congress’ power over naturalization, which in turn is best understood by examining parliament’s naturalization power. By the mid-eighteenth-century, Parliament had power to define by statute who would be recognized as a “natural born subject” – a power that, along with others, was called naturalization. In a succession of Acts, Parliament extended this designation (which originally only applied to those born in England) to various categories of people born outside the country. In adopting the phrase “natural born” from English law, the American framers likely understood that they were using a phrase without a fixed definition and subject to legislative alteration through the naturalization power. That conclusion in turn provides sound support for the modern view that Congress can create categories of “natural born” citizens by statute.
But in an op-ed in today's Washington Post, Mary Brigid McManamon, Widener/Delaware Law,  argues that "the common-law definition was accepted in the United States, not the newfangled British statutory approach."  She concludes, not as "a so-called birther" but as "a legal historian," that Senator Ted Cruz "is not a natural-born citizen and therefore is not eligible to be president or vice president of the United States."

1 comment:

Shag from Brookline said...

While Ramsey self describes as an originalist, he does not seem to follow the New Originalism with it interpretation/construction two-step. Ramsey in his article several times cites to Larry Solum's earlier article (2008) and an update (2010) as contra to Ramsey's take. Solum is of the New Originalism, exploring the issue in that context. Solum has posted at the Legal Theory Blog on Ramsey's article with his "Highly recommended" followed by an editorial comment but does not cite to his own earlier article and update. So it is not clear if Ramsey's article may shift Solum's earlier conclusion. One thing that has been clear is that many originalists do not share the views of the New Originalism, especially its two-step. In fact it is not clear whether other New Originalists (Randy Barnett, Keith Whittington and Jack Balkin agree with Solum. Frankly, this will all come down to ideological originalism, which better describes most originalists of today.

It should be noted that some think strict textualism and/or living constitutionalism might support Cruz as a "natural born Citizen."

But a big hurdle in all this is whether Congress under its Naturalization power can define the "natural born Citizen" qualification for the presidency.