Introduction
“He cannot be a subject born of one kingdom that was born under the ligiance of a king of another kingdom. 18.a.” Thomas Jefferson, Notes on British and American Alienage, [1783]1
“A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, … as in the enactments conferring citizenship upon foreign-born children of citizens . …” United States v. Wong Kim Ark, 169 U.S. 649, 702-03 (1898)
“Citizenship obtained through naturalization … carries with it all of the rights and prerogatives of citizenship obtained by birth in this country ‘save that of eligibility to the Presidency.’” Knauer v. United States, 328 U.S. 654, 658 (1946)2
Senator Ted Cruz’s campaign for the Republican presidential nomination again highlighted the Constitution’s natural born citizenship requirement for presidential eligibility.3 Sen. Cruz was born out of the jurisdiction of the United States.4 An act of Congress conferred citizenship upon him as the foreign-born child of a citizen parent.5 Therefore under U.S. constitutional history and Supreme Court doctrine Sen. Cruz is a naturalized citizen who has all of the rights obtained by birth in the United States except presidential eligibility.6
Some legal scholars consider the doctrinal and historical meaning of the term “natural born” to be outdated and suggest that judges could interpret it more broadly to include persons who receive citizenship under congressional statutes because of their birth to American parents abroad (“derivative citizenship”).7
These suggestions are problematic because derivative citizenship statutes have long discriminated on grounds including race, gender, sexual orientation, and marital and socioeconomic status.8 The Supreme Court upholds them even though they “would be unacceptable if applied to citizens” because they merely discriminate against aliens.9 Moreover, some who assert presidential eligibility for children born to citizens abroad intend to favor traditionally dominant groups. Chief Justice Fuller asserted in his Wong Kim Ark dissent that foreign-born children of American citizens must be natural born because “it is unreasonable to conclude that” children born in the United States “of the Mongolian, Malay or other race” are eligible to be president, but “children of our citizens, born abroad,” are not.10 Finally, many of those who assert presidential eligibility or other constitutional privilege for children born to citizens abroad rely on the same political theories of bloodline transmission of national character that the Supreme Court used to justify its infamous decision in Dred Scott v. Sandford,11 that Chief Justice Fuller cited to oppose Wong Kim Ark’s citizenship,12 that nativists rely on to oppose birthright citizenship for children born in America to unlawfully resident aliens,13 and that “birthers” cited to dispute President Obama’s eligibility to the presidency.14 No justifiable living or responsive constitutional interpretation can incorporate such discrimination or discredited political theories in qualifications for the highest office in the land. This article details the historical and doctrinal exclusion of those born to citizen parents abroad from natural born citizenship in the context of similar discrimination in English and British law from which it developed.15 The article concludes by identifying threshold requirements for and a possible approach to developing a justifiable theory of natural born derivative citizenship.
I. Ineligibility of Derivative Citizens
The Constitution recognizes two types of citizens, natural born and naturalized.16 Only natural born citizens are eligible to the presidency.17 Although the Supreme Court has not considered a challenge to presidential eligibility, it has long held that derivative citizens are naturalized and that naturalized citizens are not natural born.18 Therefore derivative citizens are ineligible.19 The Court’s rulings and American constitutional history reflect the following principles.
A. U.S. Citizenship
There are only two ways to obtain U.S. citizenship, by birth and by naturalization.20 The two are distinct.21 As John Jay stated the principle in 1781, “a person may by Birth or admission become a Citizen . …”22
B. Natural Born Citizenship “By Birth”
Citizenship “by birth” is obtained by birth within and under the jurisdiction of the United States.23 It is birthright “natural born” citizenship under the Constitution as recognized by Justice Curtis in dissent in Dred Scott v. Sandford and by the Court in Minor v. Happersett, Elk v. Wilkins, United States v. Wong Kim Ark, and Perkins v. Elg, the only Supreme Court case declaring a person to be a natural born citizen and directing the federal government to treat her as such.24 The Constitution does not define the term “natural born,” but the Court has long held that as a legal term known at the adoption of the Constitution it takes its meaning from English common law and that “at common law in England … the rule with respect to nationality was that of the jus soli [right of soil],—that birth within the limits of the jurisdiction of the Crown … fixed nationality . ……25 The English rule of “citizenship by birth” applied in the colonies and in the United States even before the adoption of the Constitution.26
The Court’s precedents are consistent with the Founders’ understanding. Thomas Jefferson noted in 1783 that the foreign-born child of a natural subject was an alien at common law.27 John Adams described “the natural subjects, born within the realm” in 1773,28 and Alexander Hamilton distinguished foreigners from “the natural subject, the man born amongst us” in 1787.29
C. Citizenship “By Naturalization”
Any acquisition of citizenship other than by birth in the United States is by naturalization.30 A person born outside of the United States to an American parent “is an alien as far as the Constitution is concerned, and ‘can only become a citizen by being naturalized . …’”31 The Constitution grants Congress only limited powers, and the power to grant citizenship to those born outside of the United States is limited to naturalization.32 As a result, any statute granting citizenship is a naturalization statute whether it grants citizenship at birth or afterward and regardless of parental nationality.33 Consequently a person born to American parents abroad must satisfy a statute to acquire citizenship like other aliens,34 because naturalization applies only to aliens.35 Although some refer to parents transmitting citizenship to their children under the Roman and continental right of blood (jus sanguinis), citizenship does not descend from parent to child “‘either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute.’”36 Foreign-born persons do not receive citizenship from their parents but instead receive it personally from “congressional generosity” under naturalization statutes.37
In declaring a person born within and under the jurisdiction of the United States to be a natural born citizen the Elg Court relied on an opinion by Attorney General Pierrepont that considered the case of a child born in the United States who received German citizenship under German law.38 The opinion explains:
Nationality is either natural or acquired. The one results from birth, the other from the operation of the laws of kingdoms or states. Nationality by birth in some countries depends upon the place of birth, in others upon the nationality of the parents … [I]t is clear … that by virtue of German laws the son acquired German nationality. It is equally clear that the son by birth has American nationality; and hence he has two nationalities, one natural, the other acquired.39
In finding that place of birth determines natural citizenship by birth under the Constitution the Elg Court and Pierrepont follow James Madison, who explained in the First Congress “that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United States; it will, therefore, be unnecessary to investigate any other.”40 In finding that citizenship conferred by positive enactment is not natural, Pierrepont’s opinion accords with Supreme Court’s distinction in The Charming Betsy between a person who acquires citizenship by being “born in the United States” from one “becoming a citizen according to the established laws of the country. …”41 It is also consistent with the Court’s precedents holding that natural born citizenship is “by birth” and that any other mode of acquiring citizenship is “by naturalization.”
The Court’s rulings are also consistent with the views of the Founders that foreign-born children were aliens at common law and only became subjects by naturalization,42 including James Madison’s observation that Britain “naturalizes persons born of British parents in Foreign Countries”43 The rulings are also consistent with the understanding of the First Congress in enacting the first federal naturalization act (the “Naturalization Act of 1790”).44 Congress’s purpose in enacting that law was to define “the terms on which foreigners may be admitted to the rights of citizens … by a uniform rule of naturalization.”45 In debating the bill the Representatives recognized that foreign-born children of American parents are aliens in need of naturalization to be admitted as citizens. Discussing those children, Rep. Sherman stated that the difference between a citizen and an alien is that “the citizen is born in the country.”46 No Representative asserted that the children had any right to citizenship. Reps. Burke and Hartley urged that the act include foreign-born children of American parents,47 demonstrating that the children required naturalization to be admitted to citizenship. Rep. Livermore suggested only that it “may be useful” to include them, while Reps. Laurance and Sherman stated that doing so could cause many difficulties and inconveniences -- and Rep. White even argued that including them might cause the children themselves great inconvenience.48 The risks of dual nationality were well known then as now.49
The Representatives proposed widely varying terms for naturalizing the children, including upon moving to the United States and becoming resident,50 upon moving to the United States and becoming resident but only if within a limited time,51 and at birth but expiring upon reaching majority.52 By including the foreign-born children in the final act Congress specified the terms for their admission as citizens. Rep. Tucker was the only member of Congress who discussed the constitutional relationship between admission by statute and presidential eligibility in the debates over the bill. He asserted without objection from any other member that the Constitution:
enables congress to dictate the terms of citizenship to foreigners, yet prevents foreigners being admitted to the full exercise of the rights of citizenship … because it declares that no other than a natural born citizen, or a citizen at the time of the adoption of this constitution, shall be eligible to the office of president.53
In Tucker’s view citizenship conferred by Congress is not natural born citizenship and does not confer presidential eligibility. Similarly, John Jay had previously stated that a person may become a citizen by birth or admission,54 demonstrating his understanding that those who become citizens by admission are not citizens by birth – and it was Jay who proposed the natural born requirement.55
D. Fourteenth Amendment
The only two methods of obtaining American citizenship are by birth and by naturalization. Consequently the Fourteenth Amendment’s definition of citizenship is comprehensive and declaratory of original constitutional law.56 The common law rule was articulated in the 1608 English decision in Calvin’s Case, which Thomas Jefferson relied on in his Notes on British and American Alienage. That case provided “the basis of the American common-law rule of birthright citizenship” that the Fourteenth Amendment merely codified.57
E. Rogers v. Bellei
Rogers v. Bellei is an instructive example of the Court’s precedents. Aldo Mario Bellei was born in Italy to an American mother and an alien father. The applicable naturalization statute granted him citizenship at birth subject to a condition subsequent requiring five years of continuous physical presence in the United States between the ages of fourteen and twenty eight. Bellei was a citizen at birth under the statute and traveled internationally on a U.S. passport.58 However, he failed to meet the five year presence requirement, and the United States revoked his citizenship. Bellei challenged the revocation.
The Court held unanimously that Bellei had no constitutional right to citizenship and could be a citizen, if at all, only by complying with a naturalization statute. The majority stated that the Constitution’s definition of citizenship “obviously [does] not apply to any acquisition of citizenship by being born abroad of an American parent.”59 The Justices who dissented on other grounds agreed, with Justice Black explaining that “naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country.”60 He acknowledged the considerable constitutional history of the definition while recognizing that it differs from popular usage.61
The majority then held that Bellei had to comply with all of the requirements of the naturalization statute including the condition subsequent.62 Because he had no constitutional right to citizenship it did not matter whether Congress granted citizenship at birth subject to a condition subsequent or instead provided citizenship later after meeting a condition precedent. “The proper emphasis is on what the statute permits him to gain from the possible starting point of noncitizenship, not on what he claims to lose from the possible starting point of full citizenship to which he has no constitutional right in the first place.”63
Bellei is controlling precedent demonstrating that derivative citizens are not natural born. The Constitution forbids the nonconsensual revocation of natural born citizenship.64 Yet the Court upheld the nonconsensual revocation of Bellei’s derivative citizenship. Therefore derivative citizens are not natural born.
II. Objections and Alternative Theories
Some assert that derivative citizens like Sen. Cruz are natural born despite contrary Supreme Court precedent and centuries of recognition that a person cannot be a subject born of one sovereign who was born under the allegiance of another. Some object to the common law rule generally, and others assert one of three alternative theories defining natural born citizenship.
A. Alleged Opacity and Ambiguity of the Term “Natural Born Citizen”
Some argue that the term “natural born citizen” is an opaque and dangerously ambiguous enigma because the Constitution does not define it, the Founders never explained its meaning or their reason for including it in presidential qualifications, and federal courts have not considered it, leaving open questions such as whether a person born abroad on a U.S. military facility or to a serving member of the armed forces is eligible to the presidency.65 These arguments are unpersuasive. The constitutional definition is simply the common law rule codified in the Fourteenth Amendment to bury forever the Court’s decision in Dred Scott.66 Federal courts have long adjudicated claims to birthright constitutional citizenship under this standard, including claims based on birth on a U.S. military installation abroad.67 The Fourteenth Amendment is not an enigma but rather a fundamental part of American constitutional law. No one asserts that it requires reinterpretation except those who seek to apply Roman law and continental legal theories to deny birthright citizenship to minorities born within and under the jurisdiction of the United States.68 Any ambiguity in the common law rule is ambiguity about birthright constitutional citizenship, which courts continue to clarify when adjudicating general claims to such citizenship.69
Moreover, the Founders were well aware of Calvin’s Case and the common law rule.70 They relied on Calvin’s Case as the judicial and natural law basis of colonial independence from Parliamentary authority.71 They had no need to discuss, justify or define the qualification because they had considered restricting lesser federal offices to those who were natural born well before drafting the Constitution72 and because they were aware that the term “natural born” and its variants were commonly used in the colonies and the early Republic, for example: (a) John Adams describing “the natural subjects, born within the realm” in 1773;73 (b) Alexander Hamilton distinguishing foreigners from “the natural subject, the man born amongst us” in 1787;74 (c) John Adams, John Jay and Benjamin Franklin proposing in 1783 to grant British subjects all of the rights “of natural born Citizens” of the United States in exchange for Britain granting U.S. citizens all of the rights of “natural born Subjects” of the crown;75 (d) Thomas Jefferson substituting “natural born citizens” for “natural born Subjects” in 1776 draft legislation;76 (e) the Founders claiming the rights of natural born subjects in the Declaration and Resolves of the First Continental Congress;77 (f) Massachusetts granting naturalized persons the rights of natural born citizens in 1784-85;78 (g) slaves petitioning Massachusetts for their liberty and for “all the privileges and immunities of its free and natural born subjects” in 1774;79 and (h) state constitutions from 1776 and 1777 progressively granting foreigners the rights of natural born subjects.80
The Founders also understood the operation and effects of naturalization. They ensured that naturalized persons were eligible to hold office in the colonies.81 They understood the international political implications of dual nationality resulting from naturalizing children at birth abroad.82 They enacted broad colonial statutes naturalizing immigrants because naturalization operated retroactively, enhancing security to real property and facilitating economic development although also reducing escheats to the crown,83 leading to Britain revoking the statutes and in part to the grievance in the Declaration of Independence that the king “has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners . …”84
In fact it is American derivative citizenship statutes that are opaque, poorly defined and dangerously ambiguous. Interpreting “natural born” to include derivative citizens under a living or responsive constitutional theory would only increase the definitional uncertainties and dangers. Derivative citizenship claims are often technically and factually complex, are typically adjudicated by inhospitable and underqualified administrative bodies rather than federal courts, and for certain claimants involve insurmountable burdens of proof,85 exemplified by a judge in 2011 demanding documentary evidence like utility bills or co-worker affidavits to prove residence between 1921 and 1959 of a deceased Mexican American citizen father who had been a seasonal farm worker in the Bracero Program.86 Derivative citizenship statutes rely on terms like marriage, legitimacy, custody, and permanent residency that are often undefined by statute or take their meaning from foreign law. They change frequently and lead to continuing litigation and outcomes that differ depending on the child’s place of birth and on the ability of American courts and administrators to understand and apply both domestic and foreign law, exemplified by the dispute over whether the 1937 statute granting Sen. John McCain citizenship from his 1936 birth in the Panama Canal Zone was retroactive or merely declaratory of prior law, and by federal officials repeatedly citing a nonexistent provision in the Mexican constitution to deny citizenship to children born in Mexico to American fathers.87
Their opacity is nothing new. Congress enacted the original federal derivative citizenship provision despite a disagreement over its clarity,88 and its scope remains controversial today.89 A leading State Department advisor acknowledged in 1934 that “[i]t seems to have been the rule, rather than the exception, that nationality laws fail to state in plain, unmistakable terms what is intended.”90
B. Three Alternative Theories
1. Substantive theory
The first alternative theory claims that the Constitution grants citizenship by descent because eighteenth century British derivative nationality statutes declared or changed the English common law and therefore control the common law definition of “natural born” that the Constitution incorporates. This theory necessarily includes the corollary claims that American derivative citizenship statutes are declaratory of the same British law, not naturalization statutes, and that the Fourteenth Amendment does not provide the comprehensive definition of American citizenship – the amendment leaves open the possibility of jus sanguinis as a third type of constitutional citizenship that is not naturalization. Charles Gordon propounded this theory in an influential 1968 article.91 He admitted that his conclusion was “clouded by elements of doubt” and stated it in highly qualified terms,92 and with good reason. The Supreme Court had already rejected all three claims.93 In Weedin v. Chin Bow, citizenship claim of a child born abroad to a citizen father who had also been born abroad. The Court stated the English and American common law rule, which did not apply to Chin because:
at common law in England and the United States, the rule with respect to nationality was that of the jus soli [right of soil],—that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute . …94
The Court acknowledged that Chin met the terms of a British statute but rejected his claim for failure to meet the more restrictive terms of the American naturalization statute, which included a paternal residency requirement:
Congress must have thought that the questions of naturalization and of the conferring of citizenship on sons of American citizens born abroad were related.
Congress had before it the Act of George III of 1773, which conferred British nationality not only on the children but also on the grandchildren of British-born citizens who were born abroad. Congress was not willing to make so liberal a provision.95
The Court’s conclusions are consistent with its subsequent decisions in Bellei, Miller, Nguyen v. INS,96 and Flores-Villar v. United States97If the substantive theory were correct then only a constitutional amendment could deny the right to derivative citizenship.98 This is flatly inconsistent with Supreme Court decisions upholding narrower derivative citizenship statutes.
Gordon reached his conclusion by reasoning that long-settled British practice reaffirmed in eighteenth century British nationality acts “grant[ed] full status of natural-born subjects to the children born overseas to British subjects.”99 This mischaracterizes British law. The nationality acts did not reflect settled British practice, did not apply to foreign-born children of all British subjects, and did not confer the status of a natural born subject.
The common law forbade aliens to inherit real property in order to protect the wealth and security of the realm.100 Foreign-born children were aliens, even if born to English parents, so the common law rule excluded children “of many noble and virtuous families from the service of the state, and impoverished the children of opulent parents,” and therefore Parliament enacted the “remedial and enlarging” act De natis ultra mare (Of birth beyond sea) in 1350 (the “Act of Edw. III”).101 That act prospectively granted inheritance rights to foreign-born children “whose fathers and mothers” were at the faith and ligeance of the king on the condition “that the mothers of such children do pass the sea by the licence and wills of their husbands.”102 Some authorities interpreted the act more restrictively to exclude children of English parents who had gone abroad without the king’s license103 and others more liberally, both to naturalize the children and to apply to children of an English father and an alien mother under the maxim that a wife is sub potestate viri (under the governance of the husband).104 The authorities interpreting the Act of Edw. III depart so far from its terms and are so inconsistent that an Attorney-General for England and Wales remarked in 1763 “that there never was a statute of so doubtful a construction.”105 Courts ultimately read the act in pari materia with the first eighteenth century general derivative nationality acts,106 and it did not have any subsequent meaningful effect.
The first eighteenth century general derivative nationality acts were clause 3 of The Foreign Protestants Naturalization Act, 1708 (the “Act of Ann.”),107 as explained by The British Nationality Act, 1730 (the “Act of Geo. II”).108 These acts naturalized the immediate issue of a married British father who was at the time of the child’s birth a natural born subject untainted by specified acts of treason, felony or enemy service.109 Consequently, all foreign-born children of naturalized British fathers remained aliens – including all foreign-born children of fathers whom the Acts of Ann. and Geo. II had naturalized.110 In addition, all foreign-born children of British mothers and alien fathers remained aliens, as did all those of tainted natural born British fathers and all foreign-born non-marital children (even if both parents were natural born subjects). The purpose of the acts was to increase the wealth of the British state by encouraging those within the narrow statutory class to move into the realm with their families’ foreign wealth by allowing them to inherit real property there.111 The Acts of Ann. and Geo. II did not recognize or establish transmission of nationality by right of blood but rather naturalized a narrow group of children for the economic benefit of the state.
The restriction to the immediate issue of natural born fathers was based on the plain meaning of the term “natural born subjects” in the statutes and on the feared consequences of interpreting the term more broadly. The Acts of Ann. and Geo. II naturalized foreign-born children whose fathers were “natural born subjects.” Those acts and all other British naturalization acts deemed their beneficiaries to be natural born subjects. Some asserted that naturalization made one a natural born subject so that the Act of Ann. applied to children of naturalized fathers112 with the consequence that the act would apply abroad to all posterity. Lord Bacon had claimed that the Act of Edw. III operated the same way on the foreign-born children of English parents with the “strange” consequence that their “descendents are naturalized to all generations: for every generation is still of liege parents, and therefore naturalized: so as you may have whole tribes and lineages of English in foreign countries.”113 However, courts and Parliament rejected this interpretation.
The earliest apparent judicial decision came when the issue “was put to the whole judges in England” in Lesliesv Grant(1763),114 a House of Lords inheritance decision rendered by the most prominent jurists of the time.115 Counsel for appellants stated that the case turned on whether the term “natural born subjects” in the Act of Ann. meant only “persons who were actually born within the king’s dominions” and argued that it did not.116 The Attorney-General for England and Wales explained to the contrary that the act “restrains naturalization within the father as a natural born subject” and that “[n]atural born subjects are mentioned in the acts of Parliament to be a subject born in England.”117 Counsel for respondents maintained similarly that “the privilege of a natural born subject” that a foreign-born father is entitled to plead under the Acts of Ann. and Geo. II is a “personal privilege … confined to him alone, and does not entitle his issue to the same benefit.”118
The judges first considered similar statutes including the Act of Edw. III and found that they applied only to the immediate issue of “a natural born subject, in fact and not by fiction.”119 The court rejected the claim that the term included fathers born outside the realm, stating that “[i]f the Parliament had intended this to be the case, they would have expressed it more clearly in the act.”120 The judges also reasoned that including children of those fathers would undermine the Act of Settlement, which restricted the rights of naturalized subjects other than those “born of English Parents” and “would let in all sorts of persons into the family rights, Jews, French, &c., without any test or qualification – without any residence” with the result “in terror” that the law “might naturalize one-half of Europe.”121 Persons born abroad and naturalized under acts of Parliament were not in fact natural born subjects. Their foreign-born children were aliens.
Parliament concurred with the Leslies decision in the final statute on which Gordon relies, The British Nationality Act, 1772,122 (the “Act of Geo. III,” together with the Acts of Ann. and Geo. II, the “British nationality acts” or the “Acts”). Parliament acknowledged that no prior law applied “farther than to the Children born out of the Ligeance of his Majesty, whose Fathers were natural born Subjects” and by the act extended naturalization one generation farther, to certain foreign-born children of untainted married fathers who were entitled to the privileges of natural born subjects under the derivative nationality clause of the Act of Ann.123
The purpose of the Act of Geo. III was to entitle the second generation born abroad “to come into this Kingdom, and to bring hither … their Capital” so that the state would not lose the benefit of their families’ foreign wealth.124 Because the fathers were not natural born subjects, the Act of Geo. III referred to them in very specific terms:
Fathers [who] were or shall be, by virtue of a Statute made in the Fourth Year of King George the Second, to explain a Clause in an Act made in the Seventh Year of the Reign of Her Majesty Queen Anne, for naturalizing Foreign Protestants, which relates to the natural born Subjects of the Crown of England, or of Great Britain, intitled to all the Rights and Privileges of natural born Subjects of the Crown of England, or of Great Britain . …125
Because the fathers were foreign-born Parliament doubted that they were even British for purposes of the parentage exception to the disabilities of the Act of Settlement.126 Parliament included a special provision in the Act of Geo. III exempting the children it naturalized from those disabilities.127 Addressing the Leslies judges’ fears, the act imposed numerous restrictions and qualifications. It did not “repeal, abridge or any ways alter, any Law, Statute, Custom, or Usage … concerning Aliens’ Duties, Custom or Usage” or grant “any Privilege, Exemption, or Abatement, relating thereto, in favour of any Person naturalized by virtue of” the act unless he moved to the realm, resided there, took and subscribed oaths and a declaration, took the sacrament in the Church of England or another Protestant or reformed church, and filed a witnessed and attested certificate in court.128 Even then it did not validate any claim to property that had accrued more than five years before the beneficiary satisfied its conditions.129
Consequently the Act of Geo. III discriminated against, among others, Catholic, Jewish, nonresident and nonmarital children. British derivative nationality stopped there. No general law naturalized foreign-born children of any other naturalized father. In particular, no law naturalized the foreign-born child of a father whom the Act of Geo. III had naturalized, even though the child’s bloodline traced directly through a father, grandfather, and great-grandfather who were all British subjects. The Act of Geo. III did not recognize or establish transmission of nationality by right of blood but rather naturalized an even narrower group of children than the Acts of Ann. and Geo. II, again for the economic benefit of the state.
Subsequent judicial decisions applied the Acts of Ann. and Geo. II consistently with the Leslies decision. Judges continued to rule that the term “natural born subject” in those acts meant only persons who were subjects “from nativity within the realm” and not “from statutes, or patents of naturalization,”130 reasoning that the plain meaning of the term was a subject “by birth,” not a subject by “any other mode.”131 As Chief Judge Abbott concluded for the King’s Bench in Doe dem. Thomas v. Acklam:
A child born out of the allegiance of the Crown of England is not entitled to be deemed a natural born subject, unless the father be, at the time of the birth of the child, not a subject only, but a subject by birth. The two characters of subject and subject by birth, must unite in the father.132
Statutes that deemed persons to be natural born for all purposes did not make them natural born subjects “in fact” or “in the common meaning of the term.”133 The statutes merely deemed them to be natural born by a legal fiction.134 The Acts of Ann. and Geo. II did not apply to children of naturalized fathers (not even fathers whom those acts had naturalized at birth) because those fathers were “by their birth … the subjects of another power, and not the subjects of Britain.”135 The courts interpreted the term “natural born subjects” in accordance with its common law meaning. As the leading twenty-first century British treatise states the common law rule, “birth within the Crown’s dominions and allegiance … conferred British subject status ‘by birth’ . …”136
Contrary to Gordon’s claim, Britain recognized that foreign-born children of British subjects were aliens unless one of the British nationality acts applied to them.137 Those acts were interpreted or drafted to minimize the number of naturalized foreign-born children lest too many Europeans become British subjects. They were interpreted or drafted to discriminate against children of almost every class of naturalized subjects; those of Jewish, Catholic, French or other disfavored heritage; children of British mothers and alien fathers;138 nonmarital and nonresident children; and children of tainted fathers. Finally, as described below in Part III.C.3, even when the Acts applied they did not always confer the rights of a British subject under international law and may not have imposed any obligations from birth. From their start in 1350 the English and British statutes incorporated exclusions and limitations absent from the common law rule.139 For the reasons stated above, the substantive theory cannot provide the doctrinal or historical definition of a natural born citizen.
2. Procedural theory
The second theory claims “that the phrase ‘natural born Citizen’ has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time.”140 Paul Clement and Neal Katyal make this claim in a Commentary on which Sen. Cruz relies to assert his presidential eligibility.141 Under this theory if Congress enacted a statute naturalizing at birth all heirs to the British throne then those heirs would be eligible to the presidency.142 Clement and Katyal argue that the Founders intended this meaning and its application to foreign-born children of citizens because British practice “recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used ‘natural born’ to encompass” them, because Congress has recognized since the Founding that children born to citizens abroad are generally themselves citizens at birth without the need for naturalization, and because the First Congress explicitly recognized that they are natural born citizens in the Naturalization Act of 1790.143 Supreme Court precedents, the Constitution’s history and structure, and the Naturalization Act of 1790 preclude this interpretation.
a. Supreme Court precedents
First, the rights and capacities of every naturalized person are the same as those of every other. They are inherent in naturalized American citizenship, which Congress may grant but cannot define or differentiate. The Constitution forbids Congress “to give, to regulate, or to prescribe” those capacities or “to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.”144 Congress cannot grant more rights to one class of naturalized citizens than to another by specifying different effective dates for their naturalization.145 The Court’s decisions in Osborn and Schneider reject congressional authority to create hierarchies of citizenship.146
Second, the Court’s Bellei decision precludes this theory. Bellei was a citizen at birth without the need to go through a later proceeding, yet the Court upheld the nonconsensual revocation of his citizenship even though no one may denaturalize a natural born citizen. Third, the proposal is inconsistent with the Court’s definition of common law citizenship “by birth” in Minor, Elk, Wong Kim Ark, and Elg. Clement and Katyal acknowledge that the term should be interpreted in accordance with the common law but inexplicably cite the Acts of Ann. and Geo. II to characterize the common law.147 Their error is surprising because they concede that “for better or worse, a naturalized citizen cannot serve” as president,148 and they must have been aware of the constitutional rule that children who acquire citizenship at birth to American parents abroad are naturalized citizens. Katyal asserted the constitutional rule before the Supreme Court as Acting Solicitor General.149 The constitutional distinction is between citizenship conferred by birth or by naturalization, not at birth or afterward.
b. Constitutional history and structure
British law does not support the procedural theory. As discussed above, Britain recognized that foreign-born children of subjects were aliens and naturalized only narrow categories of them for the economic benefit of the British state. In addition, the British nationality acts did not apply strictly to those who became subjects at birth without later proceedings. The Acts of Geo. II and Geo. III were retroactive, deeming persons to be natural born who were alive at enactment and in some cases already dead -- and the Act of Geo. II even retroactively denaturalized some persons covered by the Act of Ann.150 The Act of Geo. III did not grant or alter any specified privileges or laws applicable to foreign offspring until they completed post-natal proceedings. The fact that the Acts deemed children to be natural born is irrelevant. All British naturalization statutes deemed their beneficiaries to be natural born. The Act of Geo. III, for example, utilized the same language as the act naturalizing persons who resided in the colonies for seven years, with each deeming its beneficiaries to be natural born and each referring to them as “naturalized by virtue of” the act.151
Moreover, the British and American statutes provide no support for an expansive definition that includes everyone who is a citizen at birth. The Naturalization Act of 1790 only applied to children of American citizens, and the Acts only applied to the immediate issue of married male natural born subjects and to one further generation born abroad. The broader purported definition would include statutes naturalizing children who lack any source of U.S. allegiance such as ones granting citizenship at birth to every heir to the British throne. There is no historical or doctrinal support for such a broad interpretation of presidential eligibility.
Finally, even if the Constitution gave Congress an implied power to differentiate naturalized citizenship the purported definition would violate constitutional principles of separation and limitation of powers.152 The Constitution forbids members of Congress even to be electors in the Electoral College.153 It can hardly allow the legislature to define eligibility to the highest office in the executive branch, including unilaterally by overriding a presidential veto.154 The purported definition would also unconstitutionally allow Congress to impose presidential qualifications beyond those in the Constitution by including them in the statutory conditions for citizenship at birth.155 For example, the Constitution requires only fourteen years of personal residency for eligibility, but derivative citizenship statutes have included requirements of continuous physical presence between particular ages (as in Bellei) and parental residency (as in Chin Bow). One danger of this and similar theories is that they assert greater congressional power over citizenship than constitutional doctrine and history authorize.156
c. The Naturalization Act of 1790
The Naturalization Act of 1790 contradicts the proposed definition. As explained above, the First Congress recognized that foreign-born children of American citizens are aliens who can only become citizens by naturalization that does not confer presidential eligibility. The act only provided that the children shall be “considered as” natural born citizens. That term does not support an inference that Congress meant a citizen at birth or to confer presidential eligibility. The first draft of the final bill, H.R. 40, provided that “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, on their coming to reside in the United States.”157 The drafters used the term “considered as natural born” for persons who could not become citizens until after their births. It is unlikely that they intended the term to confer presidential eligibility. That would allow foreign-born persons to live to adulthood entirely abroad without any allegiance to the United States and then after moving to the United States and residing for fourteen years become eligible to the presidency.
Rep. White, who recognized the inconvenience of dual nationality, proposed that the children would “be considered as natural born until they arrive at the age of 22 years.”158 He could not have meant the term to confer presidential eligibility because his proposed citizenship would expire thirteen years before the children reached the minimum age for eligibility.159 Another amendment proposed that every alien naturalized under the act’s general provision “shall be considered as a natural born Citizen . …”160 The drafters of that proposal used the term for persons who could not become citizens until after their births and could not have intended to confer presidential eligibility or the natural born requirement would have been meaningless.161 A final proposal would have considered foreign-born minor children as natural born citizens upon the naturalization of their parents.162 The drafters of that proposal used the term for persons who could not become citizens until after their births and could not have intended to confer presidential eligibility on those alien-born children of alien-born parents.
Members of the First Congress did not use the phrase “considered as natural born” to mean eligible to the presidency or a citizen at birth. They simply followed the Act of Edw. III to describe the children as born beyond sea and the Acts of Ann., Geo. II, and Geo. III to deem (“consider”) them as natural born for purposes of granting them the general rights of naturalized citizens. Indeed, courts read even the final terms of the act to confer post-natal citizenship upon some foreign-born children of American parents until the Supreme Court interpreted the terms more narrowly in 1927.163
The final terms of the act provided that other naturalized persons would be considered as citizens, not as natural born citizens like the children. That difference may reflect an important issue of the debate – whether naturalization should grant the rights of a natural born person under state law, particularly the right to own and inherit land, progressively (as the states generally did prior to the Constitution’s adoption) or all at once.164 Congress may have intended to ensure that the children received all of the rights of a natural born person under state law at once. For these and other reasons,165 the procedural theory cannot provide the doctrinal or historical definition of a natural born citizen.
3. Hybrid theory
Michael D. Ramsey asserts a hybrid theory of eligibility under which Congress may confer presidential eligibility by naturalization but only to persons granted citizenship at birth to American citizen parents, arguing that this rule is consistent with British practice and with the purpose of the eligibility clause.166 He claims that in England with only one exception “[t]he only persons granted full natural born status (including eligibility to office) by statute were those who had material connections to England at birth, namely that their parents or grandparents were English subjects.”167 By the eighteenth century those children “were born under the allegiance and protection of the monarch (what the common law required of a ‘natural born citizen’) even though not born in the monarch’s lands.”168 All other naturalized persons were subject to the disabling clause mandated by the Act of Settlement that prohibited them from holding office. The only exception was the titular provision of the Act of Ann. that naturalized Protestant immigrants without imposing the disabilities, and Parliament quickly repealed that provision, “indicating] that Parliament realized it had overstepped its authority in” that act.169 Following English practice would also prevent Congress from conferring “natural born status on a particular individual without … making all similarly situated persons equally eligible” because “Parliament did not exercise its naturalization power in this way.”170 British and American law and practice preclude this theory.
Parliament could not have overstepped its authority in the Act of Ann. because no Parliament can bind its successors.171 It repealed the titular provision because destitute Protestant refugees flooded England and built a tent city of some fifteen thousand immigrants around London,172 not because it thought it had overstepped its authority. It left intact an earlier statute that naturalized sailors without imposing the disabilities.173 Subsequent acts of Parliament also naturalized particular individuals of high rank without imposing the disabilities.174 Lord Brougham and Vaux publicly criticized British practice as “absurd and inconsistent” for exempting particular foreigners of high rank who were the most likely to influence the government while enforcing the disabilities against naturalized persons “of the most insignificant station” who could not possibly exert any influence.175
In addition, Parliament allowed exemptions from other prohibitions in the Act of Settlement including that of foreigners holding offices or positions of trust and one that the drafter of a later nationality act called the most important – the prohibition on sitting in the House of Commons while holding any office or place of profit under the crown.176 The threat of crown patronage to parliamentary independence is apparent.
Moreover, foreign-born children of British parents were not born under the allegiance of the monarch in the eighteenth century. The very basis of the Acts was that the children were born out of the monarch’s allegiance and therefore could only be deemed natural born by a legal fiction.177 The Acts only applied to those born out of allegiance,178 and the House of Lords decision in Leslies specifically states that “[t]he common law right, and the statutory right, are set in opposition to one another.”179 The children’s rights (including any right to protection) followed only from statutory grant.180 And, as described below in Part III.C.3, even when the Acts applied they did not always confer the rights of a British subject under international law and may not have imposed any obligations from birth.
Finally, the Act of Settlement’s parental exemption was not limited to persons naturalized at birth. The Act of Settlement predated the British nationality acts, and it was not widely accepted that the Act of Edw. III naturalized foreign-born children of English parents; consequently, many foreign-born children of English parents were post-natally naturalized prior to the Act of Ann.181
The First Congress was well aware of British practice including Parliament’s attempts to impose the disabilities, its failed general system of naturalization, and the fact “that, to this day, even of their meritorious naval and military characters they make an exception, as to sitting in parliament, &c. …”182 Contrary to Ramsey’s and others’ assertions,183 there was no such thing as “full natural born status” in British law. There were only natural born subjects in fact (subjects by birth) and persons deemed to be natural born by a parliamentary fiction (subjects by statute). Some subjects by statute could hold office and others could not, depending entirely on the will of Parliament. By overriding the Act of Settlement in subsequent statutes Parliament exercised its supreme authority and properly authorized persons to hold office. If the United States followed British practice then Congress could grant presidential eligibility to anyone at any age, and federal officers could sit in Congress contrary to the constitutional prohibition.184 However, Congress is not supreme. It cannot alter the constitutional definition of “natural born.” For these and other reasons, the hybrid theory cannot provide the doctrinal or historical definition of a natural born citizen.185
III. Consistency with English and British Interpretations
The Supreme Court instructs us to interpret the term “natural born citizen” by reference to English common law, which the Court interprets to mean nationality “by birth” – that is, nationality conferred by birth within and under the jurisdiction of the sovereign.186 The body of American authorities beginning in the colonial era and including Inglis, Minor, Elk, Wong Kim Ark and Elg is extensive and should be sufficient to determine the constitutional definition without further reference to English and British authorities and regardless of any disputes over the proper interpretation of those original authorities. However, the lack of a Supreme Court decision on presidential eligibility might allow one to appeal to the original authorities to dispute the Court’s rule of construction (that the common law provides the definition) and its specific interpretation of the common law (nationality “by birth”). In any event, comparing the Court’s rulings and American constitutional history with the English and British interpretations shows that they are broadly consistent, although it also reveals some significant inconsistencies in English and British doctrine.
A. The Common Law
The Court’s rule of construction is consistent with the eighteenth century rule that a known legal term used in an act of Parliament takes its common law meaning, a rule with which the Founders were likely familiar.187 It is also consistent with the British rulings that the common law provides the definition of “natural born” in the British nationality acts and with Parliament’s concurrence in the Act of Geo. III. The Supreme Court’s formulation of the common law rule is consistent with the standard British interpretation. The Court routinely relies on Blackstone to determine English law,188 and Blackstone defines natural born subjects at common law as those born within the king’s dominions and allegiance because of the natural allegiance that they owe him in return for the protection he affords them during their infancy when they cannot protect themselves.189 The Court’s formulation and its definition of nationality “by birth” are also consistent with Acklam, the U.K. Home Office’s view of the common law, and the leading twenty-first century British nationality treatise.190 The Court’s decisions are also consistent with British understanding of American constitutional law. Britain recognized even before Minor that the United States had inherited the English common law rule based solely on place of birth, and it observed that both nations recognized the inconveniences of the rule in the case of children born to their subjects abroad and therefore both enacted remedial legislation to ameliorate its effects.191
B. Naturalization and Non-transmission of Nationality
American recognition that the Acts were not declaratory of the common law is consistent with the standard British interpretation.192 American recognition that they were naturalization acts is consistent with the text of the Act of Geo. III (“any Person naturalized by virtue of this Act”);193 the opinion of Lord Kenyon, Chief Justice of the King’s Bench, in Duroure (the Acts extend “the privileges of naturalization”);194 Blackstone’s Commentaries (characterizing the Act of Ann. as “naturalizing the children of English parents born abroad”);195 the House of Lords in Leslies;196 the Home Office;197 a select committee of the House of Commons;198 and other authorities.199 “Naturalization” applied only to aliens, the word meaning “where a Person who is an Alien, is made the King’s natural Subject by Act of Parliament, whereby one is a Subject to all Intents and Purposes, as much as if he were born so . …”200
The principle that foreign-born children of American citizens are aliens to the Constitution is consistent with British law under which children born to subjects abroad were aliens and could only be deemed subjects if they met the terms of a nationality statute.201 The principle that citizenship does not descend from parent to child is consistent with the British rule that “nationality is a status which must be acquired by or conferred upon the individual himself. It is not a status which can be transmitted to him by his parent.”202 Just as the Supreme Court said of common naturalization statutes,203 a British court explained that the child “does not really acquire his status by reason of his descent.”204 This conclusion is consistent with the stated policy rationale of the Acts. In Fitch v. Weber the court rejected a claim that general paternal disloyalty could prevent the Acts from applying to a child, explaining that “[t]he privilege conferred by the statutes … is the privilege of the children and not of the father, and is conferred upon the children for the benefit of the state.”205 The Acts conferred a personal privilege; they did not recognize or create a right of blood.
C. Inconsistencies in English and British Interpretations
1. Common law rule
The standard interpretation of the common law rule is not undisputed. Some believed that the Act of Edw. III declared the common law.206 Others asserted that foreign-born children were natural born at common law if their father was English,207 so that the Act of Edw. III narrowed the law by requiring both parents to be English. Some even concluded that it was impossible to state the common law rule with precision and defaulted to statutory rules for convenience.208
2. Effect of post-natal naturalization
English and British authorities differed on the effect of post-natal naturalization. Naturalization deemed a person to be a natural born subject as if born in the realm. Naturalization in England gave the subject a “civil birth” there; that is, he had “a civil birth given him by Act of Parliament . …”209 Some asserted that this made one a natural born subject. Lord Hale opined that “birth here” and post-natal naturalization of a son “is all one” because naturalization makes him “a natural born son, (for so he is, as I have argued by his naturalization).”210 Several pre-Revolutionary British statutes stated that a naturalized person became a natural born subject.211 The well-known Lex Parliamentaria, which Thomas Jefferson considered to be the best parliamentary work, explained that Parliament’s naturalization of an alien “make[s] him a Subject born.”212 A court even held that post-natal naturalization made one liable to a charge of high treason under a statute that only applied to persons born within the realm.213
However, many considered naturalization to be merely a legal fiction that could not make one a natural born subject because one “cannot have two natural Sovereigns … no more than two natural fathers, or two natural mothers.”214 The critical feature of a natural born subject was the natural allegiance she owed from her actual birth within the realm in exchange for the monarch’s protection there beginning at birth.215 The king provided protection within his country, and therefore the newborn’s place of birth was her natural country and her allegiance to its king was natural allegiance.
3. Operation and effects of the Acts
Despite rulings that parents do not transmit British nationality to their children by descent, some refer to parental transmission of nationality by descent for two generations under the Acts.216 This might raise the question whether the Acts did “in fact make the beneficiaries actual natural born subjects (as opposed to merely giving the rights of natural born subjects).”217 The only apparent controlling authorities that pre-date the Constitution, Leslies v. Grant and the Act of Geo. III, demonstrate that the Acts did not in fact make one natural born or even British. Consistent with those authorities, Blackstone made clear before Independence that the Acts only “deemed” their beneficiaries to be natural born.218
Nineteenth century and later general usage of the term “natural born subjects” varies, however. The leading twenty-first century treatise states that “[t]he terminology did not distinguish between acquisition by birth and acquisition by descent; instead, anyone born a subject was termed a ‘natural-born’ subject.”219 Yet the U.K. government’s British nationality summary describes only the person born in the U.K. as a subject born.220 Some nineteenth century authorities assert that the Acts deemed one to be natural born by a legal fiction.221 Lord Moncreiff expressed that opinion in 1839:
All the three Acts necessarily assume, that the persons who are thereby declared to be natural-born subjects of Great Britain, and to be taken and accounted as such, are really not so in the common meaning of the term. The very basis of the enactments is, that they are born out of the liegance of the British Sovereign, and so are not naturally his subjects, but, by the laws of nations, the natural-born subjects of a foreign state. It is apparent therefore, that the descendants of the first generation always must be ex hypothesi, in that condition — that, by their birth, they are the subjects of another power, and not the subjects of Britain … and the emphatic terms employed in declaring them to be natural-born subjects, import a very powerful fiction of the law, but still nothing but a fiction, for effecting the object in apparent consistency with the general principle of the law of alienage.222
Lord Cuninghame further explained that the Acts “appear to have been framed purposely to encourage and bring back persons of British extraction, born aliens, to their allegiance, and still to bestow on them their inheritance in this country, if any descended to them.”223 In this view a natural born subject was only one who became a subject by birth, not one who became entitled to the rights of a natural born subject by statute, even by a statute naturalizing him at birth.224 The latter was by nature an alien and by birth the subject of another power, not a subject of Britain.
A New York court described British law similarly in a decision involving custody of a child born in the United States to a natural born English father. The court explained that the Acts of Ann. and Geo. II were enabling statutes of naturalization that merely deemed the child to be natural born by a parliamentary fiction in order to give her the rights of a natural born subject but could not affect her national character because that would conflict with the fundamental rule that natural allegiance is that which “natural born subjects … by natural law owe to the country of their nativity . ……225 Even persons naturalized by the Acts could explain this distinction. The foreign-born Rev. Joseph Blanco White described his paternal grandfather in 1829 as “a natural born subject, a native of Waterford” but himself as only a “British subject” who has the “right to all the privileges of a natural born subject . …”226 He carried copies of the Acts to the polls to prove his right to vote because people considered him to be an alien.227
However, other nineteenth century authorities use language that can be interpreted to support both views. Lord St. Leonards writes of the Act of Geo. II that “in order to entitle an alien to be treated as a natural-born subject, he must at the time of his birth, although a foreigner born, be the son of a father who was a natural-born subject,”228 acknowledging that the child is an alien whom the act merely entitles to be treated as a natural born subject. In the same opinion, however, he writes “[n]obody will dispute that under that Act a legitimate child, the child of a natural-born subject, becomes a natural-born subject from the moment of his birth” – suggesting that naturalization under the Acts actually made one a natural born subject.229 Lords Jeffrey and Mackenzie write that “natural-born is but an adjective, which imports nothing more than the exclusion of those subjects, to whom it cannot be applied. It means those who were born subjects, certainly”, suggesting that anyone naturalized at birth was natural born.230 However, they also write in the same opinion that the term “natural born subjects” in the Acts of Ann. and Geo. II means only persons who become subjects from nativity in the realm, not from statutes or patents of naturalization,231 demonstrating their view that a father who had been naturalized under those acts was not in fact natural born.
The nearest interpretation of British law on point by a Founder is by Thomas Jefferson who wrote that the Acts of Edw. III, Ann. and Geo. II naturalized foreign-born children and that “here are statutes first making the son born abroad a natural subject, owing allegiance.”232 It is unclear whether Jefferson meant to distinguish children naturalized under the Acts from persons naturalized under other acts of Parliament. Post-natally naturalized subjects owed the allegiance of a natural subject, and Jefferson’s esteemed Lex Parliamentaria states that naturalization by Parliament makes an alien “a Subject born.”233
Some of the inconsistencies might be explained by the impossibility of reconciling the common law’s rationale of natural allegiance with the policy rationale of the Acts (to increase national wealth by attracting limited classes of foreign-born offspring to Britain). The clearest example was the view of some authorities that the Acts did not grant any privileges or impose any obligations until a beneficiary affirmatively exercised the privileges. Until then the beneficiary was at most only technically a British subject, was not entitled to the rights of a British subject under international law, and would not be guilty of treason for bearing arms against Britain in the service of his native country.234 The Crown asserted in Drummond’s Case, for example, that the Acts only “confer the benefits of naturalization in Great Britain on those who come there and avail themselves of them” and “cannot be held to naturalize a man who … passes his whole life in a foreign country,” so that one who never claimed their privileges could not be guilty of treason for bearing arms against Britain.235 The Crown argued in the alternative that if the Acts did apply to Drummond, who was born and domiciled in France, then he was a British subject only in an artificial sense and not within the ordinary meaning of the words or under the law of nations.236 The Privy Council found Drummond to be in form and substance a French citizen and denied him treaty benefits due to British subjects, describing him as only “technically a British subject” and finding it “difficult to believe” that Britain would have executed him for treason if it had captured him fighting against it on the side of the French.237
Yet this cannot entirely explain the inconsistencies in English and British law and practice. Coke’s report in Calvin’s Case explains that birth within the dominions and allegiance of the king “naturalized” Calvin by procreation,238 and George II pardoned a natural born subject convicted of treason after the jury recommended mercy because he had been removed from Britain in his early infancy and had thereafter resided entirely abroad.239
D. Conclusion
The Supreme Court’s controlling precedents and American constitutional history are consistent with the applicable eighteenth century British rule of construction, the standard British interpretation of the common law rule of nationality “by birth,” the British characterization of a subject’s foreign-born children as aliens by nature, and the non-transmission of nationality. In particular, they are consistent with Leslies v. Grant and the Act of Geo. III, the only two apparent controlling authorities interpreting the effect of the Acts on natural born status that pre-date the Constitution. Consequently, only a morally and politically justifiable living or responsive theory of constitutional interpretation can grant derivative citizens eligibility to the presidency.240
Other English and British authorities that interpret the effects of naturalization at birth and afterward reveal deeply conflicting visions of national identity and allegiance based on characteristics like residency, gender, religion, age, and spousal heritage. They even question whether the Acts required any allegiance to Britain from birth. Those authorities do not justify departing from the American doctrinal and historical definition of a natural born citizen. Rather, they stand as an example of the difficulty of developing a coherent theory of nationality and allegiance that could justify granting presidential eligibility to derivative citizens.
IV. Natural Born Derivative Citizenship: Threshold Requirements and a Possible Approach
Some assert that the natural born citizenship requirement is inconsistent with democratic government and is racially prejudiced given the scale and sources of contemporary immigration.241 Expanding the definition to include derivative citizens would only compound the problem. The same intense nativism and gender bias that animated British nationality statutes drove even more restrictive American derivative citizenship laws and practices that to this day reinforce traditional gender roles and include requirements deliberately enacted to reduce the number of persons gaining citizenship at birth to American parents abroad, particularly persons of Asian, Southern and Eastern European, and Mexican American heritage.242 Seven centuries of Anglo-American legal history illustrate the difficulty of reconciling derivative nationality law and practice with our highest constitutional ideals of equal protection of the law.
Any proposal to treat derivative citizens as natural born should meet the following threshold conditions. First, the derivative citizenship statutes should not discriminate against any children of any American citizens in practice or intent. They should not impose substantive or procedural conditions or constraints that favor children of some parents over those of others. Second, the proposal should be based on a theory of moral values and political allegiance that does not undermine birthright citizenship inherited from the common law, incorporated in the original Constitution, and codified in the Fourteenth Amendment. Third, the federal government should respect such values and allegiance generally, not merely in presidential eligibility. The nation cannot rely on the importance of parents to justify presidential eligibility for some citizens while deporting those of natural born minors.243
One possible approach to a constitutional theory of natural born derivative citizenship may be to recognize and respect rights of the family as a unit, as its members define their family, rather than the rights of only individual members. Domestic and international law provide significant precedent for recognizing rights of family unity that could provide the moral basis for the foreign-born child’s citizenship.244 The allegiance of the child to the family and of the family to the nation could provide the necessary political basis for the child’s citizenship and presidential eligibility, particularly if the nation respects and protects the family as a unit in its general laws as well as in its rules of presidential eligibility.245 Such a theory might support natural born derivative citizenship without undermining birthright constitutional citizenship. Family unity can skip generations, does not require the parent to be an American citizen, and does not require a bloodline relationship. Congress has considered foreign-born grandchildren and unrelated adopted children of American citizens and resident aliens to be their “natural-born” children in order to allow the children preferential entry into the country.246
The challenges of meeting these thresholds will be great. There is no certainty that a morally and politically justifiable theory can be developed, and Congress is unlikely to yield its historical power to discriminate in derivative citizenship law. However, courts might in time reach the result by striking down discriminatory provisions of current law under a well-constructed and morally justifiable living or responsive theory of constitutional interpretation that meets the threshold conditions and thus our highest constitutional ideals of equal protection of the law.