Wednesday, May 4, 2016

John Jay on "Natural Born" Citizenship

[Remember back when Senator Ted Cruz was running for President and we all wondered what the words "natural born citizens" meant in the US Constitution?  Elizabeth M. Nuxoll and the editorial board on the The Selected Papers of John Jay sent us these notes from that work.  This remains an important issue, notwithstanding the suspension of Senator Cruz's campaign--until 2020.

[Both notes are from Elizabeth M. Nuxoll et. al., eds., The Selected Papers of John Jay, Volume 4: 1785-1788 (Charlottesville, Va., 2015) and appear here with permission.]

Notes regarding John Jay and the "Natural Born Citizen" Clause in the United States Constitution.

Credit: LC
Volume 4 of The Selected Papers of John Jay depicts John Jay's major role in the movement for constitutional revision under the Articles of Confederation while he served as Secretary for Foreign Affairs. As discussed in an editorial note on "John Jay and the Constitutional Convention of 1787," Jay was not a delegate at the Constitutional Convention and the convention's deliberations were secret, but there is evidence that he conveyed his views to Washington, the convention's presiding officer, and to certain other delegates. Prior to the convening of the Philadelphia meeting, Jay had advanced some of the notions embodied in the Randolph Plan, including enlarged powers for Congress and the President, separation of powers, and checks and balances. On July 25, 1787, he addressed a letter to Washington, advancing the view that the commander in chief of the American army should be a "natural born" citizen: "Permit me to hint, whether it would not be wise & Seasonable to provide a strong check to the admission of Foreigners into the Administration of our national Government, and to declare expressly that the Command in Chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen.--"  In the draft of his letter to Washington, Jay had suggested, but excised, that all national civil offices be held only by "natural born" citizens. Jay's suggestion regarding the commander in chief was applied to the office of President and embodied in Article II, Section 1, Clause 5 of the Constitution. Jay's letter is the first known expression of the American use of the term "natural born citizen". See Elizabeth M. Nuxoll, et al, eds., Selected Papers of John Jay (Charlottesville, Va.: University of Virginia Press, 2015), 4: 464-65, 528-29: see also W.W. Abbot, ed., The Papers of George Washington, Confederation Series, 1 February 1787-31 December 1787 (Charlottesville, Va.: University of Virginia Press, 1997), 271-72; Founders Online.

While serving as a delegate to the New York Ratifying Convention, Jay proposed on July 25, 1788, and the convention approved, a constitutional amendment requiring "natural born" citizenship for eligibility for president, vice president, and member of both houses of Congress [see Journal of the Convention of the State of New-York, held in Poughkeepsie, in Dutchess County, the 17th of June, 1788 (Poughkeepsie: printed by Nicholas Power, 1788), 76-78; John P. Kaminski et al, eds., Documentary History of the Ratification of the Constitution (Madison, Wis., 1976-), 23: 2312-13]. However, this proposed amendment was not among the amendments later adopted by Congress and ratified by the states. For the sorts of concerns about the earlier use of foreign officers in the Continental Army, and more recently in the Netherlands, that may have prompted Jay's proposal, see the slightly later letter to him from John Adams of November 30, 1787, printed in the Selected Papers of John Jay, 4: 621, 623-24 note 2; see also Founders Online: Early Access.

[From Note: Selected Papers of John Jay, 4: 466-67, note 11]

John Jay's linkage of office holding to the status of "natural born" citizenship created considerable constitutional confusion and controversy in subsequent years. Jay did not define "natural born citizen," nor did the Federal convention when it incorporated it into the requirements for the presidency, nor did the New York ratifying convention when it adopted Jay's proposed amendment.

In making his ambiguous proposals Jay seems to have been adapting British law to American conditions. British law had used the term "natural born subject," and sometimes "native," to apply to a person born within the royal domain or nation. However, various laws, including the statutes of 25 Edw. III (1350), 29 Car. 2, c. 6 (1676), 7 Anne, c. 5 § 3 (1708), 4 Geo. II, c. 21 (1731), and 13 Geo. III, c. 2 (1773), extended the status of "natural born subject" to the children of British parents born abroad and to the children of British fathers and grandfathers. Whether Jay intended to incorporate such supplementary provisions when he replaced the term "natural born subject" with "natural born citizen" has not been determined.

In limiting office holding to the "natural born," Jay was probably also following British precedent. Under the articles of settlement of 1701 (12 and 13 Will. III, c. 2, sec. 3) and 1714 (1 Geo. I, Stat. 2, c. 4), only natural-born persons were eligible for the Privy Council, either House of Parliament, and civil or military offices or places of trust. Under acts of 1740 and 1773 (13 George, 11, c. 7; 13 Geo, III, c. 21), foreign Protestants who resided in the colonies for seven years, took the requisite oaths, and met certain religious tests, were deemed "natural born subjects" and could hold local office, but were not entitled to hold office in either Great Britain or Ireland. The 1740 act adjusted the requirements for oaths to permit Quakers and Jews in the colonies to obtain the status of "natural born subject," though again without the right to hold office in Britain or Ireland. According to the Providence Gazette of 15 May 1784, a bill was proposed in the House of Commons to award children of British mothers born abroad the status of "natural born Subject," but the bill did not became law. On British, colonial, and state statutes, see James Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill, N.C., 1978), 3-224.

For discussions of the controversies surrounding use of the term "natural born citizen," and the question of the applicability of British law to the United States, see Jill A. Pryor, "The Natural Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty," Yale Law Journal 97 (1988): 681-99; Christina S. Lohman, "Presidential Eligibility: The Meaning of the Natural Born Citizen Clause," Gonzaga Law Review 36, 2 (2000-2001): 349-74; and Lawrence Friedman, "An Idea Whose Times Has Come-The Curious History, Uncertain Effect, and Need for Amendment of the 'Natural Born Citizen' Requirement for the Presidency," St. Louis University Law Journal 52 (2007): 137-59.

Another possible source for Jay's proposal to restrict office holding to "natural born citizens" is the writings of Emer de Vattel (1714-1767), who discussed the subject in Chapter XIX of The Law of Nations. The edition that Jay owned, now in the Law Library of Columbia University, was The Law of Nations: or, Principles of the Law of Nature applied to the Conduct and Affairs of Nations and Sovereigns. Translated from the French. London: Printed for J. Newberry . . ., 1759-60; Vol. 2: Printed for J. Coote. This work defined "natives," or "indigenes," as those "born in the country of parents who are citizens," and adds that "The country of the fathers is then that of the children; and these become true citizens, merely by their tacit consent". If Jay, or other founders, were adapting Vattel's terminology, the constitutional provision could require presidents to be born in the country of parents, or at least fathers, who were citizens. However, no evidence confirming such an intention has been found.

Proposals to extend the restriction on office holding to "natural born citizens" to other offices reappeared during 1798-99 during the Quasi-War with France, while Jay was governor of New York. At that time a number of states, including New York, adopted resolutions proposing a constitutional amendment requiring the Vice-President, members of Congress, and sometimes heads of the executive departments, to be "natural born citizens." One part of these objectives was implemented by the twelfth amendment, passed by Congress in 1803 and ratified in 1804. In addition to establishing separate ballots for President and Vice President in the electoral college, the amendment specified that no person who is "constitutionally ineligible" to be President can be Vice-President. It thereby required the Vice-President, like the President, be a "natural born citizen." See Herman V. Ames, "The Proposed Amendments to the Constitution of the United States During the First Century of Its History," Annual Report of the American Historical Association for the Year 1896 (2 vols.; Washington, D.C., 1897), 2: 30, 74, 77-80. For Jay's recommendation of such a measure for serious consideration, see his letter of February 5, 1799, to the New York State Senate, referring an amendment proposed by New Hampshire, printed in the New York Gazette, February 13, 1799.