Friday, January 19, 2018

Lee on the "Natural Born Citizen"

Thomas H. Lee, Fordham University School of Law, has posted Natural Born Citizen, which appears in the American University Law Review 67 (2017): 327-411:
Article II of the U.S. Constitution states that a person must be a "natural born Citizen " to be eligible to be President. This Article surveys relevant evidence and explains what the phrase likely meant when the Constitution was adopted between 1787 and 1789. The phrase at the time encompassed three categories of persons: (1) persons born within the United States; (2) persons born outside of the United States to U.S. citizens in government service; and (3) persons born outside of the United States to U.S. citizen fathers who had resided in the United States but went abroad temporarily for a private purpose, like merchants who traveled on business. This definition corresponded with contemporaneous English law understandings of "natural born subjects," the natural law birthright principles of jus soli (the law of soil) and jus sanguinis (the law of blood or parentage), and the law of nations-the key jurisprudential sources consulted by Americans on matters of citizenship in the late eighteenth-century world order. This novel interpretation of the original meaning of "natural born Citizen" departs from the conventional wisdom that the phrase refers to a person who is a citizen under the U.S. naturalization statutes in effect at the person's birth, a view recently espoused by two former Solicitors General of the United States, Paul Clement and Neal Katyal. My interpretation also differs from the leading alternative view of the original meaning of the phrase, namely that it refers to persons born in the United States or outside of the United States to U.S. officials only. A brief conclusion explores the implications of the recovered original meaning of "natural born Citizen "for presidential eligibility today.
Here’s Professor Lee’s chattier version, in the discursive style of Facebook:
It's taken me a couple of years, but it's finally done and published. Everything you ever wanted to know about why the US Constitution requires a “natural born Citizen” to be President. It starts with a monumental 14th century English statute with a Latin love-song title--“De Natis Ultra Mare”; John Jay's July 25,1787 letter to George Washington; Alex Hamilton's August 10, 1787 motion at the Constitutional Convention which Jimmy Madison vigorously seconded; a 1784 Maryland statute making the Marquis de Lafayette “and his male heirs forever” starting with George Washington Lafayette natural born citizens; the 1790 Naturalization Act--it's all in there, and more. There are convention debates about why we want immigrants, why we don't, foreign influence on the selection of the US President, and what it all means today. If you want to skip the first 85 pages, here is the last sentence: “Words, after all, are only as perfect as their creators, and so is our written Constitution.”

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