natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz

natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz

I believe Marco Rubio, Bobby Jindal and Ted Cruz to be “natural born Citizens” and eligible to be President.  Here’s why.

1. Summary

There are few eligibility requirements to be President.  You don’t have to be smart, wise, experienced, honest, educated, or a particular gender or race.

Article II, Section 1, of the Constitution provides, in pertinent part (emphasis added):

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

For people currently alive, the three requirements are: “natural born Citizen”; age 35; resident of U.S. for 14 years.

Whether a candidate is a “natural born Citizen” has been the subject of political controversy for well over a century, dating back at least to Chester Arthur, who Democrats at the time alleged was born in Canada, not Vermont.  Among others, John McCain, Barack Obama, and George Romney have had their eligibility questioned.

This political season, the eligibilities of Marco Rubio, Bobby Jindal and Ted Cruz are the subject of debate.

As much as we want certainty, the term “natural born Citizen” is not defined in the Constitution, in the writings or history of those who framed the Constitution, or in a demonstrable common and clear understanding in the former British colonies at the time the Constitution was drafted.  Nor has the Supreme Court ever ruled on the issue, and it probably never will.

The modifier “natural born” is not used anywhere else in the Constitution, and its precise origins are unclear, although  it is assumed to be derived in some manner from the British common and statutory law governing “natural born Subjects.”

There are two ends of the spectrum as which just about everyone agrees:  (1) A person born in the United States to parents both of whom are United States citizens is a “natural born Citizen”; and (2) a person born outside the United States to parents neither of whom is a United States citizen is not a “natural born Citizen” even if citizenship later is obtained through naturalization.  These are what law professor Lawrence Solum refers to as “cases of inclusion and exclusion.

Rubio, Jindal and Cruz, as did Obama, fall between those points of inclusion and exclusion.  Rubio and Jindal were born in the United States to parents neither of whom was a United States citizen at the time; Cruz was born in Canada to parents one of whom (his mother) was a United States citizen.

Under the law existing at the time of their birth, each became a citizen of the United States at birth.  Rubio and Jindal by the 14th Amendment, Cruz by statute.

I’ve spent a considerable amount of time examining the issue of what “natural born Citizen” means in this context.  While concepts such as “jus soli,” jus sanguinus” and “natural law” are part of the equation, such concepts do not adequately answer the question, no matter how many times or how vigorously they are repeated.  Similarly, relying on statutes governing citizenship does not answer what “natural born Citizen” means in the Constitution and does not render the question trivial.

There is a false construct all around that this is a purely legal question subject to some absolutely right or wrong conclusion.  We should all just admit that we don’t really know for sure what “natural born Citizen” means or meant between the points of inclusion and exclusion.

So what to do in a constitutionally and politically important area in which there is no clear legal answer?

The key to understanding why I reach that conclusion that Rubio, Jindal and Cruz are “natural born Citizens” requires understanding the problem.

There are strong arguments in favor of Rubio, Jindal and Cruz each being a “natural born Citizen” as that term most reasonably can be understood through its plain text because they became citizens by birth.  Their “natural born Citizen[ship]” also is consistent with the concepts, respectively, of citizenship by birth place (Rubio, Jindal) and parentage (Cruz), from which the term “natural born Citizen” is believed to derive historically.

The arguments that the term “natural born Citizen” excludes Rubio and Jindal (because their parents were not citizens) or Cruz (because he was born abroad to a citizen mother only) at most raise doubts.  Those doubts, however, never rise anywhere near the level of making the case that Rubio, Jindal and Cruz are excluded.  Most of the counter-arguments are historical conjecture, at best, and rely on speculation not connected to the text of the Constitution or any demonstrable actual intent or understanding of the Framers.

In the circumstance of candidates who appear to qualify based on the text of the Constitution and the traditions upon which “natural born Citizen[ship]” is believed to derive, and as to whom there are at worst some doubts raised, I believe the proper constitutional outcome is to leave the issue to the political process.  To exclude apparently eligible candidates based on speculation as to what the term “natural born Citizen” might have meant is no better, and I would argue much worse.

Remember, these are merely eligibility requirements, not requirements that a person be elected.  It would be consistent with the Framers’ demonstrable concerns to consider loyalty to the United States as a political factor, even if not absolutely legally disqualifying.  If you don’t trust the loyalty of a candidate because of how he or she became a “natural born Citizen,” don’t vote for the person.

I set forth below my approach and reasoning.

2. Caveats, conditions and limitations 

I do not claim any prior expertise in the “natural born Citizen” clause.  Few people had that expertise prior to the challenges to McCain.  Challenges to Obama increased the number of purported experts exponentially.

In addition to my own research with the assistance of a former student, I have received input from readers on at least two occasions (here and here).  Even if I disagree with some of the comments, I value the input.  The notion that the Constitution is the exclusive domain of lawyers is unfounded and unwise.

There are limits to this analysis.  It is not intended to argue for or put the dispute into a particular constitutional construction theory.  I link to many writings by constitutional law professors and others who do put the dispute in a more theoretical context, particularly the issue of “originalism,” and you can read those.

I don’t claim that mine is the only approach, but having dwelled on this for several months, it’s the approach that I find best helps unravel the Gordian Knot of accusations and arguments.

I also am not trying to “win” the argument.  I have no intention (hah!)  of getting into the endless argument streams this topic engenders, where for every answer there is a new obscure historical reference or convoluted theory until someone gives up.  There are some things you just can’t “win” on the internet, and this is one of them.

As to formatting, this topic really doesn’t lend itself to the blog post format.  So I’ve not followed legal briefing or law review style of using “supra” and “infra” for repeated citations, instead I just use the full cite each time.   I also leave footnote numbers in quotes, so that if you go to the source, you can follow more easily.  I’ve tried to link to public sources as much as possible.  Some material is hard to find on the internet, but I’ll try to back fill source links after publication as I hunt for public sources.

3. The unfortunate term “birther”

I also want to go on record again objecting to the use of the term “birther.”  If the term were confined to conspiracy theorists, that would be one thing.  But it has become a tool to shut down even legitimate debate.

The term was used as a pejorative as part of a deliberate Obama campaign strategy to shut down debate on his issues, and then expanded outward as a general Democratic talking point as a synonym for racist.  One didn’t even need to question Obama’s eligibility to be called a “birther.”

Unfortunately, the term has been picked up by many Republicans and conservatives to shut down even good faith questions as to the eligibility of Rubio, Jindal and Cruz.  You don’t need to do that.

I suggest that it is our duty as citizens to ascertain that these minimal eligibility requirements are met.  I guess I’m politically naïve in that regard.

Now to the analysis I followed in reaching my conclusions.

4. The Text of The Constitution

The place to start in any analysis is with the text of the Constitution.

As indicated at the start, we’re dealing with a single sentence in Article II, Section 1 (emphasis added):

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

The first thing to note is that the words “natural born” are not capitalized.  Here is the original, handwritten section (source):

It’s interesting that the actual writing of the term does not denote it is a defined concept, which might have been conveyed conveyed through initial capitalization, as in “Natural Born Citizen.”  At least in modern usage, that might have been significant, but it’s not dispositive because even spelling in the Constitution does not appear to follow any set of rules.

What is significant is that nowhere else in the Constitution as originally ratified is the term “Citizen” defined, much less as modified by “natural born.”  Since we must construe the Constitution (or any law for that matter) so as to give meaning to all terms when possible and reasonable, we have to assume that “natural born” means something, and was not just an error or excess verbiage.

We can presume the term “natural” was not relating to the method of birthing, but rather, birth as relates to citizenship.

It’s also important that the text itself does not contain words, such as  “native born” citizen, which might have reflected a geographic limitation.  Similarly, there are no words delineating any further limitations, such as requiring that both parents be citizens at the time of birth or excluding those with dual citizenship; such wording could have been inserted, and the lack of such limitations is significant.

All we know from the text itself is that to be President one must be a citizen by virtue of birth, not some other method of obtaining citizenship.  There is no other reasonable explanation that relies solely on the text, not outside sources.

But how birth creates “natural born Citizen[ship]” the text doesn’t tell us.

5. The Framers never expressed what “natural born Citizen” meant

Is there any indication that the Framers meant anything other than what the plain text suggests, that a “natural born Citizen” is someone who acquires citizenship by virtue of birth?  No, there is no such evidence.

There is no record of the Framers having explained what was meant by “natural born Citizen.”  Nothing in the history of the debate or drafting sheds light on the subject.

One of the most respected scholarly reviews of the “natural born Citizen” issue was by CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968)(emphasis added):

A second puzzling aspect of the constitutional prescription is its naked, again undefined, reference to the “natural-born.” The presidential qualification clause is the sole instance of this term’s appearance in the Constitution.5 The only explanation for the use of this term is the apparent belief of the Framers that its connotation was clear. With the passage of the years this has proved a mistaken assumption. However, any reading of this language must take into account the admonition that an “isolated phrase in the United States Constitution [cannot be] rigidly interpreted without regard to other relevant provisions and to time and circumstance.”6

***

The deliberations of the Constitutional Convention of 1787 furnish no clues to the underlying purpose. The Convention was writing on  a clear slate, since the Articles of Confederation made no provision for a Chief Executive.8 … The discussions regarding the executive concerned his title,11 powers,12 term of office,13 and manner of selection.14 There was virtually no discussion of [presidential] qualifications.15

Professor Michael Dorf notes the significance of Gordon’s writings, Originalism Versus Straight Talk:

… There is almost no contemporary evidence of what the framers and ratifiers thought the precise contours of the limit were. The leading scholarly treatment of the issue says that “no explanation of the origin or purpose of the presidential qualification clause appears anywhere in the recorded deliberations of the [Constitutional] Convention.” The article, called “Who Can Be President of the United States: The Unresolved Enigma,” was written in 1968 by Charles Gordon, then General Counsel of the INS and an adjunct law professor at Georgetown. It was published in the Maryland Law Review.

6. “natural born Citizen” usage at the time of drafting the Constitution is uncertain

As an alternative to an explicit explanation by the Framers, perhaps “natural born Citizen” was a commonly understood term in the newly independent United States at the time of drafting and ratification of the Constitution, such that they felt no need for explanation.  If so, that might shed light on the meaning.

There is no evidence to suggest that the term was in common usage at the time, but there is some evidence that “natural born Citizen” related to citizenship by birth, consistent with the plain text, and did not have some complicated British historical meaning.

Jill A. Pryor, THE NATURAL-BORN CITIZEN CLAUSE AND PRESIDENTIAL ELIGIBILITY: AN APPROACH FOR RESOLVING TWO HUNDRED YEARS OF UNCERTAINTY, 97 Yale L.J. 881 (1988)(emphasis added):

But the extent to which the colonies adopted British nationality law varied widely. [FN30] It was unclear how existing precedents of nationality law applied to the colonies, since these cases dealt specifically with England or previously independent lands acquired by conquest or descent. [FN31] Prominent jurists of the time disagreed over the proper legal analogy for the colonies, while the colonists wanted the protection of the British common law without being subject to control by Parliament. [FN32] This already complex heritage became more complicated when the colonies passed their own naturalization laws prior to the Declaration of Independence. [FN33]

After independence, no uniform rules of naturalization existed prior to the first exercise by Congress of its naturalization powers, the Naturalization Act of 1790. [FN34] Thus, at the time of the framing of the Constitution, there was no common understanding of what ‘natural born citizen’ meant. [FN35]

The phrase was used in a letter to from John Jay to George Washington, and that letter appears to be the source.  Unfortunately, no explanation was given as to what it meant.

Law professor Malinda L. Seymore, writing in the Brigham Young Law Review in 2005, The Presidency and the Meaning of Citizenship, 205 BYULR 927, points out that distrust of foreigners was a concern, although how that relates to the term “natural born Citizen” is unclear (emphasis added):

The Natural-Born Citizen Clause of the U.S. Constitution was adopted against the backdrop of English law that codified distrust of the foreign born. This distrust of foreign-born citizens became codified in the Constitution. Article II, Section 1, Clause 4 “is remarkably innocent of both legislative history and judicial gloss.”48 The apparent purpose of the clause limiting the presidency to natural-born citizens was to “cut off all chances for ambitious foreigners, who might otherwise be intriguing for the office.”49 One commentator traces the genesis of the clause to a letter from John Jay, who later became the Chief Justice of the United States, to George Washington:

Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.50

*      *      *

When the first draft of the presidential qualification clause was presented to the Convention, it required the President to be a citizen, but contained no mention of how that citizenship must be attained.57 Shortly thereafter, George Washington wrote Jay, thanking him for the “hints contained in your letter.”58 Two days later, a second version of the presidential qualifications clause was presented to the Convention.59 This version contained the natural-born requirement and was adopted as presented with no discussion of the natural-born citizen provision.60

Because the second version of the presidential requirements came a mere two days following Jay’s letter to Washington and was adopted without discussion, and considering Washington’s considerable presence at the convention, it is entirely possible that Jay’s reasons for including the natural-born requirement were the primary motivations behind the provision: namely, fear of foreign dominance of government. Thus, Justice Story rightly concluded that the natural-born requirement was motivated by a fear of foreign involvement in the government.61

Jill A. Pryor, THE NATURAL-BORN CITIZEN CLAUSE AND PRESIDENTIAL ELIGIBILITY: AN APPROACH FOR RESOLVING TWO HUNDRED YEARS OF UNCERTAINTY, 97 Yale L.J. 881 (1988), points out that Alexander Hamilton’s notes support the conclusion that “natural born Citizen” relates to citizenship at birth (emphasis added):

The letter is generally assumed to be the source of the phrase in the Constitution. [FN38] Some writers have suggested that Jay was responding to rumors that foreign princes might be asked to assume the Presidency. [FN39] But the only firm conclusions that may be drawn from the letter are that Jay was interested in creating some guarantee of allegiance to the United States for high office holders and that he placed special significance on the word ‘born.’

These conclusions are strengthened by the existence of another document, which, oddly enough, has never been mentioned in previous discussions of the clause. On June 18, a little over a month before Jay’s letter, Alexander Hamilton submitted a ‘sketch of a plan of government which ‘was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose . . . in . . . future discussion.’’ [FN40] Article IX, section 1 of the sketch provided: ‘No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.’ [FN41] Hamilton’s draft, which appears to be an early version of the natural-born citizen clause, contains two distinct ideas: first, that those currently citizens will not be excluded from presidential eligibility, and second, that the President must be born a citizen. Without the modifier ‘natural,’ the essence of the text is apparent: The President need not be native born, but must be a citizen from birth.

CHARLES GORDON, in his analysis, points to an almost contemporaneous Act of Congress which suggests that the use of  “natural born Citizen” was consistent with the plain reading of the text, as arising from birth even abroad, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

And the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States…  shall be considered as natural-born citizens : Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.64

On balance, therefore, it seems likely that the virtually contemporaneous coloration provided by the 1790 act lends support to the view that the constitutional reference to natural-born citizens was intended to include those who acquired United States citizenship by descent, at birth abroad.

John Yinger also has a lengthy discussion of some background on what led up to the clause, The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution.  See also J. Michael Medina, The Presidential Qualification Clause in this Bicentennial Year, 12 Oklahoma City University Law Review 253 (1987).

What is clear from all these analyses is that we have no demonstrable basis on which to conclude a specific meaning to the term based on common usage.

7. British common and statutory law doesn’t solve the problem

In the absence of clear terminology, explanation or common usage, it is appropriate to look to British common law in trying to understand terms in the Constitution.  It is presumed that the Framers were familiar with and may have borrowed terminology.

The term “natural born Citizen,” however, was not used in British law at the time.  There was a term called “natural born Subject,” but that was a function of both common law and statutory law.

The combination of common law and statutory law supported being a “natural born Subject” based on the location of birth or parentage, although the usage wasn’t entirely consistent across the British Empire, or necessarily adopted in colonies that became the United States.  (It likely is for that reason that the attorneys challenging Obama’s eligibility had no choice but to insist that “natural born Subject” could not be the basis for understanding “natural born Citizen” — see below).

Prof. Polly J. Price, NATURAL LAW AND BIRTHRIGHT CITIZENSHIP IN CALVIN’S CASE (1608), 9 Yale J.L. & Human. 73 (1997) examined the historical roots of the term (emphasis added):

The territorial rule derived from Calvin’s Case rendered the status of British colonists different from that of colonists of other European countries. Calvin’s Case led to what is today known in international law as the jus soli, the rule under which nationality is acquired by the mere fact of birth within the territory of a state. [FN13] The other great rule for assigning nationality at birth, the jus sanguinis, is identified with the civil law. It holds that, regardless of the place of birth, nationality is acquired by descent following the status of at least one parent (usually the father). [FN14] The United States, Great Britain, and many Latin American countries traditionally have favored the jus soli over the jus sanguinis as a rule for acquisition of citizenship by birth. [FN15] By contrast, the jus sanguinis has been the favored rule in almost all European nations. [FN16]

No nation relies exclusively on one of these principles to determine who is a natural-born subject or citizen. [FN17] In Britain, even before Calvin’s Case, various acts and proclamations provided that a child born out of the territory of England could also be a natural-born subject, as long as the child’s parents owed allegiance to the sovereign of England. [FN18] This is an example of the jus sanguinis operating alongside the jus soli. In the history of both Britain and the United States, the jus sanguinis has always been established by statute, never by judge-made law. [FN19] ….

[FN19]. For example, in 1698 the British Parliament naturalized the children of subjects who were born abroad while the parents were in the King’s service. An Act to Naturalize the Children of Such Officers and Soldiers, and Others the Natural-Born Subjects of This Realm, Who Have Been Born During the War, the Parents of Such Children Having Been in the Service of This Government, 1698, 10 Will. 4, ch. 20 (Eng.). A few years before, Parliament passed an act to naturalize the children of royalists born abroad during the interregnum, An Act for the Naturalizing of Children of His Majesty’s English Subjects, Born in Foreign Countries During the Late Troubles, 1676, 29 Car. 2, ch. 6 (Eng.). See also British Nationality Act, 1981, ch. 61, ss 1, 3 (Eng.); Dummett & Nicol, supra note 17, at 37-38 (citing other acts of Parliament). In the United States, in the Naturalization Act of 1790, Congress provided that “the children of citizens of the United States, that may be born beyond the sea,…shall be considered as natural born citizens ….” Naturalization Act of 1790, ch. 3, s 1, 1 Stat. 103 (repealed 1795). For contemporary law conferring citizenship at birth outside the territorial United States, see 8 U.S.C. s 1401(c)-(e), (g) (1995).

Lawrence B. Solum, Commentary, Originalism and the Natural Born Citizen Clause, 107 Mich. L. Rev. First Impressions 22 (2008)(also here) notes the seemingly inconsistent interpretations of how British common and statutory law impacted the “natural born Citizen” clause (emphasis added):

Existing scholarship does not reveal extensive usage of the phrase “natural born citizen” in the founding era, but it was derived from the related phrase “natural born subject,” which had a technical meaning in English law and constitutional theory. Those learned in the law in the framing era would have been familiar with Blackstone’s Commentaries, which James Madison described (in the Virginia ratifying convention) as “a book which is in every man’s hand.” ….

Blackstone’s understanding of the notion of a “natural born subject” is not completely clear or precise. On the one hand, he states “[n]atural-born subjects are such as are born within the dominions of the crown of England,” but on the other hand, he suggests “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.” ….

If the American conception of “natural born citizen” were equivalent to the English notion of a “natural born subject,” then it could be argued that only persons born on American soil to American parents would have qualified…..

So far we have assumed that the conventional meaning of “natural born citizen” for those learned in the law in the eighteenth century was equivalent to the meaning of “natural born subject” in nineteenth century English law. But is this assumption correct? Does the substitution of the term “citizen” for “subject” alter the meaning of the phrase? And if those learned in the law did recognize a difference, what implications does that have for the meaning of the natural born citizen clause?

The language of the Constitution recognizes a distinction between “citizens” and “subjects.” For example, Article III, section 2 differentiates “citizens” of the several states from “citizens” or “subjects” of foreign states. In the framing era, these terms reflected two distinct theories of the relationship between individual members of a political community and the state. In feudal or monarchical constitutional theory, individuals were the subjects of a monarch or sovereign, but the republican constitutional theory of the revolutionary and post-revolutionary period conceived of the individual as a citizen and assigned sovereignty to the people….

This conceptual distinction may be relevant to the original understanding of the American constitutional phrase “natural born citizen,” which was used instead of the English legal phrase “natural born subject.”

Lawrence Friedman, AN IDEA WHOSE TIME HAS COME–THE CURIOUS HISTORY, UNCERTAIN EFFECT, AND NEED FOR AMENDMENT OF THE “NATURAL BORN CITIZEN” REQUIREMENT FOR THE PRESIDENCY, 52 St. Louis U. L.J. 137 (2007):

What are the permissible sources for construing the meaning of a phrase that the Framers left undefined and did not discuss in any contemporaneous account? Some have argued that English common law in effect at the time of the adoption of the Constitution is a reliable source of interpretation. [FN40] Under this interpretation, children born abroad to American citizen parents acquire citizenship at birth because this was a long standing principle of English common law.

But on closer examination, it is at least questionable whether this could be considered a common law principle in 1789. As early at 1350, Parliament enacted a statute providing that persons born “beyond the sea” to English subjects “shall have and enjoy the same benefits and advantages” as their parents with respect to inheritance. [FN41] A 1677 statute made children of English subjects who had fled the country during Cromwell’s protectorate natural born subjects of the Crown. [FN42] A 1708 statute stated that any foreign born child of a natural born British subject was a natural born subject of the kingdom. [FN43] Subsequent legislation in 1731 and 1773 extended the principle to the grandchildren of natural born subjects and stated that these foreign-born *144 “natural born subjects” were eligible to hold all offices in the American colonies (although not in England). [FN44]

Because of the duration of the pendency of these statutes, it has been suggested that by the time of the drafting of the Constitution it was a principle of the common law that a child born abroad of a citizen was a “natural born” citizen. [FN45] This is at best questionable, because before independence, the colonies were not consistent in their adoption of English law generally and the English law of nationality in particular. The colonies also passed differing laws regarding naturalization. [FN46]

The colonies tended to adopt only those aspects of the common law that were “of a general nature, not local to [England].” [FN47] It has also been observed that the colonists did not agree with how the English law of citizenship and naturalization was being enforced in the colonies, and expressed these objections in the Declaration of Independence. [FN48] For these reasons, it is questionable whether English common law in existence at the time of the adoption of the Constitution provides definitive guidance as to the meaning of the phrase “natural born citizen.” [FN49]

I frequently see commenters and writers on the internet insist that “natural born Citizen” means the same thing as “natural born Subject” in order to prove that one must be born in the United States to be a “natural born Citizen,” but one does not follow from the other.

That’s likely why two of the most visible attorneys arguing against Obama’s eligibility insisted that we could not use “natural born Subject” as the template for “natural born Citizen.”  Instead, they engaged in gross speculation as to how the First Amendment provision prohibiting the establishment of religion interacts with the “natural born Citizen” clause in order to extract themselves from that bind:

AMICUS BRIEF by Leo Donofrio in Georgia Presidential Eligibility Case (emphasis added):

The common law rule of jus soli subjection is a complex spiritual concept, which does not simply relate to birth on British soil. Despite popular belief, the common law meaning of “natural-born” is not synonymous with “native-born”. The true nomenclature of “natural-born subject” is rooted in “natural subjection” to the spiritual body of Christ, and therefore our Constitution forbids any construction of the “natural-born citizen” clause that alleges the term to be synonymous with “natural-born subject”.

* * *

Spiritual enemies are not recognized by the laws of the United States, and neither is natural law part of our secular jurisprudence. Therefore, a necessary and proper consultation of the nomenclature of the common law, forbids any construction of the natural-born citizen clause that relies upon the English common law concept of natural allegiance.

As these many and varied accounts demonstrate, there is no clear answer to the question of whether and if so in what way “natural born Citizen” relates to “natural born Subject.”  What is clear is that the notion that “natural born” status requires being born in-country has little basis in British law, much less British law as commonly understood in the former British colonies that became the United States.

8. There Is No Requirement That Both Parents Be Citizens

One common phrasing of objections to Rubio, Jindal and Cruz being deemed “natural born Citizens” is that, regardless of where they were born, both parents would have had to be citizens.

That argument is devoid of almost any support.  The text does not say so.  There is no demonstrable evidence that is what the Framer’s intended, or that’s how the term was commonly understood at the time of drafting.  Such a requirement also is not found in the almost contemporaneous Naturalization Act of 1790, or even in British law which (as described in the section above) was confused and changed over time, but typically followed the father’s lineage for children born abroad.  See also discussion of Supreme Court cases below.

9. The Vattel Treatise is not dispositive

The treatise by Emmerich de Vattel (1758), frequently is invoked by people arguing against natural born Citizenship for Rubio, Jindal and Cruz because the term “natural born Citzen” as used by Vattel allegedly requires that the person be “born in the country of parents who are citizens.”  (emphasis added)

§ 212. Citizens and natives.

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.

The problem with that argument, however, is that the English translation of the 1758 edition did not use the term “natural born Citizen.”  That term did not appear until the 1797 edition, a decade after the Constitution was ratified.

The Congressional Research Service, in its 2011 report by attorney Jack Meskill, Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement, notes:

It may be noted that some have argued that the relevant common meaning of natural born citizen that was prevalent in 18th century America should not be the one that was actually applicable in the American colonies during that time from British statutory and common law, and which was adopted specifically by the states after independence in 1776 (and which, as noted by Justice Story, formed the “foundation” for American jurisprudence), but rather should be recognized as a Swiss legal philosopher in the mid-1700s.99 This particular treatise, however, in the editions available at the time of the drafting of the U.S. Constitution, did not actually use, either in the original French or in English interpretations at that time, the specific term “natural born citizens.”100 It was not until after the adoption of the Constitution in the United States did a translator interpret the French in Emmerich de Vattel’s Law of Nations to include, in English, the term “natural born citizens” for the first time, and thus that particular interpretation and creative translation of the French, to which the Vattel enthusiasts cite, could not possibly have influenced the framing of the Constitution in 1787.101

But don’t take Meskill’s word or sources for it. Two of the leading attorneys challenging Obama’s eligibility admitted that the term was not in the edition available in 1787, and they make the illogical bootstrap argument that the later change in the Vattel verbiage somehow applies retroactively:

AMICUS BRIEF by Leo Donofrio in Georgia Presidential Eligibility Case (emphasis added):

In 1775, Benjamin Franklin wrote a gracious note to Charles Dumas, for “the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations.” Franklin also stated that Vattel’s treatise was, “continually in the hands of the members of our Congress.” (From a letter, Benjamin Franklin to Charles Dumas, Dec. 19, 1775.) ….

Vattel’s treatise was first published in 1758, in French. The first edition contains the exact same passage as the 1775 edition give to Franklin by Dumas. In 1759, the first English edition was published in London, translated as follows:

“The citizens are the members of the civil society : bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country of parents who are citizens.” “The Law of Nations or Principles of the Law of Nature”, E. de Vattell, (London, 1759), § 212, pg. 92. (App. Pg. 159.)

“Les naturels, ou indigenes”, was not accurately translated. The proper translation of “indigenes” is “natives”. The 1759 London edition makes the mistake of repeating the same word twice, once in English and once in French; “natives or indigenes” means “natives or natives”.

The influence of the U.S. Constitution may have played a part in correcting the error, since, in the 1797 London edition, and thereafter, the French passage was correctly translated as follows:

“The citizens are the members of the civil society : bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country of parents who are citizens.” (Emphasis added.) “The Law of Nations or Principles of the Law of Nature”, E. de Vattell, (London, 1797), § 212, pg. 101.
(App. Pg. 161.)

Additionally, Vattel did not purport to explain the meaning of the term in the context of British law or the common understanding in the British American colonies or newly formed United States.  It is, at best, highly speculative to assert that the Framers looked to Vattel for the definition of “natural born Citizen.”

10. There is Nothing Forbidding “Dual Citizens”

To avoid repetition, each of the arguments set forth as to alleged requirement that both parents be citizens applies as well to the argument that a candidate is excluded if a dual citizen.  While one can develop theories of why that might have been a concern, there is nothing in the text, demonstrable intent and common understanding, or British history (assuming it even was clear and applied) which would make such a condition disqualifying.  See also discussion of Supreme Court cases below.

11. The 14th Amendment defines birth citizenship, but not “natural born Citizen[ship]”

Section 1 of the 14th Amendment provides, in pertinent part:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The 14th Amendment, as interpreted by the Supreme Court, provides for citizenship for those born in the United States even to alien parents.  This concept of birthright citizenship is its own whole debate, but as of now it’s settled law.  It’s also a different concept than “natural born” citizenship, at least in theory.

While the 14th Amendment did not purport to and did not change the meaning of “natural born Citizen,” it is important because it clarified that citizenship was a matter of birth for anyone born in the United States, in this case Rubio and Jindal.

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

On its face, the fourteenth amendment did not purport to define or limit the presidential qualification or the naturalization clauses…. of the Constitution. I believe that even if transmission of citizenship by descent at birth abroad were regarded as a form of naturalization, the reasonable and generally accepted view, in the light of the ancient tradition and the contemporary indicia of purpose, is that in speaking of citizenship acquired by birth or naturalization in the United States, the fourteenth amendment did not seek to exclude acquisition at birth outside the United States…. It seems to me, therefore, that the fourteenth amendment has  little significant relevance to the appraisal of the presidential qualification clause, and that the amendment’s specification of birth or naturalization in the United States does not exclude other methods of acquiring United States citizenship.

12. No Clear Binding Supreme Court Precedent

The two cases most cited in this area are Minor v. Happersett, 88 U.S. 162 (1874) and United States v. Wong Kim Ark, 169 U.S. 649 (1898).  Neither case actually decided what “natural born Citizen” means, but there was some verbiage (what we call “dicta,” meaning expressions not related to the actual ruling) which have created a lot of unsubstantiated claims.

Minor v. Happersett addressed whether a state law affording only men the right to vote violated the privileges and immunities clause of the 14th Amendment, not whether the woman litigant was a “natural born Citizen.” Is resolving the case to find that there was no violation, the Court made the following statement (emphasis added):

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it providesFN6 that ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,’FN7 and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. 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. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words ‘all children’ are certainly as comprehensive, when used in this connection, as ‘all persons,’ and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.

It is crystal clear, from the sentences I have underscored, that the Court in Minor v. Happersett did not even purport to resolve the issue as to whether children born in the United States “without reference to the citizenship of their parents” were “natural born Citizen[s].” The issue of “natural born Citizen[ship]” was not before the court, was not the issue in the case, and expressly was not resolved; yet this wording relating to “natural-born Citizens” often is used improperly to claim that birth in the United States is not enough to be a “natural born Citizen” unless both parents were citizens.

Not only does that ignore the subsequent sentences, it also over-reads the case.  Even if there were a holding that “all children born in a country of parents who were its citizens” were “natural born Citizen[s],” that would not exclude other situations giving rise to being a “natural born Citizen.”

It’s common to see people refer to Ex Parte Lockwood, 154 U.S. 116 (1894) as supposedly confirming that Minor v. Happersett is binding authority.  (There even was a conspiracy theory that Justia and Cornell’s Legal Information Institute conspired to hide Lockwood, which I somehow got dragged into.)  Lockwood, however,  did not involve the “natural born Citizen” clause, but rather, a claim by an attorney who was refused admission to the Bar and claimed a violation of the 14th Amendment’s privileges and immunity’s clause.  The Court in Lockwood quoted Minor v. Happersett but only as to citizenship, not for the purpose of ruling on the “natural born Citizen” clause:

In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizons of the United States was no violation of the federal constitution.

In United States v. Wong Kim Ark, the issue was whether a child born in the United States to non-citizen parents from China was a citizen of the United States by virtue of the 14th Amendment.  The Court held the child was a citizen, but in reaching that result engaged in some discussion of the history of citizenship and “natural born Citizen[ship]” which has sparked many theories (and a vigorous dissent).  There are lengthy discussions of the concept of allegiance under British citizenship law, as well as French and European citizenship concepts.  From these discussions, many have drawn all sorts of conclusions in every direction.

This paragraph, however, has led to claims that persons born abroad cannot be “natural born Citizen[s]” because birth abroad is “naturalization”:

The fourteenth amendment of the constitution, in the declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,’ contemplates two sources of citizenship, and two only,—birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law.  But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution.  Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.  A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

It’s not clear that the Court was considering these topics in the context of the “natural born Citizen” clause, since that was not at issue in the case.  Since “natural born Citizen[ship]” was not the issue in the case, and the Court did not even purport to rule on the issue as to whether someone is a “natural born Citizen,” at most there were expressions of opinion (dicta) that would not be legal precedent.

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

It is manifest that these statements of the majority and dissenters in Wong Kim Ark were dicta, pure and simple. The question before the Court concerned children born in the United States, and it was not asked to pass on the status of children born abroad. Several of the propositions expounded by the majority are, as I have suggested, debatable. In any event, the majority’s opinion did not discuss the presidential qualification clause of the Constitution and is not necessarily relevant to its interpretation, except possibly by inference.188

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

In Wong Kim Ark, the Supreme Court found some comfort in its earlier decision in Minor v. Happersett. 189 The only question in the latter case was whether a state could validly restrict voting to male citizens of the United States. The answer, since expunged by the nineteenth amendment, 140 was that women could be denied the vote. In his generalized discussion, Chief Justice Waite observed that “new citizens may be born or they may be created by naturalization.”141 The court mentioned the presidential qualification clause and stated that it unquestionably included children born in this country of citizen parents, who “were natives, or natural-born citizens, as distinguished from aliens or foreigners.m42 While this language appears to equate natives and natural-born, the Court specified that it was not purporting to resolve any issues not before it.148

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

Patently there is little aid in these judicial expressions.169 None of them directly addresses the presidential qualification clause of the Constitution. Their discussions generally concern the historical antecedents of citizenship by descent and the extent of that doctrine’s acceptance in the United States before and after the adoption of the fourteenth amendment.

There are other problems with trying to use Wong Kim Ark to show that both parents must be citizens and/or that the person must be born in the United States. My former student who helped with research compiled the following quotes from the case which totally undermine that argument:

1. “Children, born in England, of . . . aliens, were therefore natural-born subjects.” Id. at 655.
2. There is an “established rule that all persons born under British dominion are natural-born subjects.” Id. at 657 (citing the British case Udny v. Udny (1869) L. R. 1 H. L. Sc. 441.).
3. Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.’ ‘Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.’ Id. (citing Dicey, Conflict of Laws (1896) (emphasis in original)).
4. “It is universally admitted, both in the English courts and in those of our own country, that all persons born within the colonies of North America, while subject to the crown of Great Britain, were natural-born British subjects.” Id. at 659 (citing Inglis v. Sailors’ Snug Harbor, 28 U.S. (3 Pet.) 99, 120 (1830)).
5. “[C]hildren born in [Maryland] of an alien who was still living, and who had not been naturalized, were ‘native-born citizens of the United States.” Id. at 661-62 (citing McCreery v. Somerville, 22 U.S. (9 Wheat.) 354, 356 (1824)).
6. “[I]t [is unquestionable that . . . a child born in England of alien parents was a natural-born subject.” Id. at 662 (citing Levy v. McCartee, 31 U.S. (6 Pet.) 102, 112 (1832)).
7. “All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.” Id. (quoting U.S. v. Rhodes, 27 F.Cas. 785 (C.C.Ky. 1866) (Swayne, J.)).
8. “And if, at common law, all human beings born within the ligeance of the king, and under the king’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States in all cases in which there is no express constitutional or statute declaration to the contrary.’ “Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, ‘subjects,’ for we are equally bound by allegiance and subjection to the government and law of the land.” Id. at 665 (quoting Chancellor Kent in Kent’s Commentaries, Vol. 2 (6th ed.)).
9. “[A]ny person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth, and is a natural-born British subject.” Id. at 667 (citing Dicey, Conflict of Laws, at 741).

One of the problems is that the few times “natural born” is used in Supreme Court cases (though never the basis for a ruling), the Court sometimes uses “native born” and “natural born” without distinction. For example, in Baumgartner v. United States, 322 U.S. 665 (1944), a case not involving the “natural born Citizen” clause, the Court said “[u]nder our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the presidency.” There is no further explanation given, and the case the Court cited, Luria v. United States, 231 U.S. 9 (1913) also did not involve the “natural born Citizen” clause.

This is the problem with dicta; where any court does not need to decide an issue as a basis for its ruling, there often is no briefing on the subject and a court’s opinion on an issue is not fully developed because it doesn’t need to be.

I should also note that in addressing this issue, we often see citations to state court rulings tracing the history of “natural born” in British and common law. One such case, Lynch v. Clarke (1845) was a New York Chancery Court that did not involve the “natural born Citizen” clause, but rather, how alleged citizenship affected inheritance rights. In Wong Kim Ark the Supreme Court noted that the Clarke case, while is contained a detailed discussion of the common law, was resolved only on the issue of citizenship:

That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than 50 years after the adoption of the constitution, when the matter was elaborately argued in the court of chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clarke (1844) 1 Sandf. Ch. 583.

The best that can be said of Supreme Court precedent is that there is none, and the dicta cuts both ways on the issue of the “natural born Citizen” eligibility requirement.

13. The Weight of Authority Supports Rubio, Jindal and Cruz

As set forth above, great uncertainty exists as to what the “natural born Citizen” clause meant in the minds of the Framers, as it was used in the former British colonies, or as a term in relation to the British notion of “natural born Subject.”

There was general, but not uniform, consensus among scholars in the pre-Obama era and with regard to John McCain’s eligibility that the text imposed a requirement only that the citizenship be gained by a matter of birth, even if outside the United States, and even if only one parent were a citizen.

Although I have not relied upon the comprehensive Congressional Research Service Report (2011) for analysis, I do agree with this assessment that is widely quoted in the press:

The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.

Another good source summarizing the historical scholarship is William T. Han, BEYOND PRESIDENTIAL ELIGIBILITY: THE NATURAL BORN CITIZEN CLAUSE AS A SOURCE OF BIRTHRIGHT CITIZENSHIP, 58 Drake L. Rev. 457 (2010).

Here are some more sources laying out the scholarly landscape and scholarly disagreements:

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

In viewing this development, the leading British authorities agree that under the early common law, status as a natural-born subject probably was acquired only by those born within the realm, but that the statutes described above enabled natural~born subjects to transmit equivalent status at birth to the . children born to them outside of the kingdom. These are the views expressed in Coke on Littleton46 Blackstone47 Cockburn,48 and Dicey.49 The latter is most explicit in stating that a natural-born subject “means a British subject who became a British subject at the time of his birth” and that this designation includes a person born abroad whose father or _paternal grandfather was born in British dominions. 50 …

If the constitutional reference to natural-born citizens were assessed only in the light of the previous British usage, it would present  little difficulty. “Natural-born citizen” doubtless was regarded as equivalent to “natural-born subject,” adjusted for the transition from monarchy to republic.51 The Framers certainly were aware of the long-settled British practice, reaffirmed in recent legislation in England, 52 which unquestionably “applied to the colonies before the War of Independence, “53 to grant full status of natural-born subjects to the children born overseas to British subjects.54 There was no warrant for supposing that the Framers wished to deal less generously with their own children.55 Therefore, in the absence of other factors, it would have been relatively easy to find such children “natural-born” within the contemplation of the Constitution. 56

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

My study of this 180 year enigma leads me to the following conclusions.

1. The reference to “natural-born” in the presidential qualification clause must be considered in the light of the English usage, well  known to the Framers of the Constitution. The English common law, particularly as it had been declared or modified by statute, accorded full status as natural-born subjects to persons born abroad to British subjects.

2. Although the evidence of intent is slender, it seems likely that the natural-born qualification was intended only to exclude those· who were not born American citizens, but acquired citizenship by naturalization. The Framers were well aware of the need to assure full citizenship rights to the children born to American citizens in foreign countries. Their English forebears had made certain that the rights of such children were protected, and it is hardly likely that the Framers intended to deal less generously with their own children. The evidence, although not overwhelming, unquestionably points in the direction of such generosity.

3. This gloss of prior history and usage is not dulled, I believe, by the Naturalization Act of 1790 or by the fourteenth amendment.  The 1790 act, enacted soon after the Constitutional Convention, recognized such persons as natural-born citizens. The fourteenth amendment, adopted primarily to confirm the full citizenship denied to Negroes by the Dred Scott decision, did not refer to “natural-born” citizens, did not purport to limit or define the presidential qualification clause of the Constitution, and did not, in my estimation, bar a construction of that clause to include children born abroad to American parents.

4. Nor is such a construction foreclosed by questionable dicta in United States v. Wong Kim Ark and other Supreme Court decisions.  These dicta are not addressed to the presidential qualification clause and cannot control its construction.

Having endorsed these conclusions, I must concede that the picture is clouded by elements of doubt. These doubts will unquestionably persist until they are eliminated by a constitutional amendment, a definitive judicial decision, or the election and accession of a President who was “natural-born” outside the United States.241 ….

Alexander Porter Morse, Natural Born Citizen of the United States – Eligibility for the Office of President, 66 Albany L.J. 99 (1904):

A natural-born citizen has been defined as one whose citizenship is established by the jurisdiction which the United States already has over the parents of the child, not what is thereafter acquired by choice of residence in this country.

Our conclusion is that the child of citizens of the United States, wherever born, is “a natural-born citizen of the United States,” within the constitutional requirement; and, as· such, if possessed of the other qualifications, would be eligible for the office
of president of the United States.

Alexander Porter Morse, Natural Born Citizen of the United States – Eligibility for the Office of President, 66 Albany L.J. 99 (1904):

The question is often asked: Are children of citizens of the United States born at sea or in foreign territory, other than the offspring of American ambassadors or ministers plenipotentiary, natural-born citizens of the United States, within the purview  of the constitutional provision? After some consideration of the history of the times, of the relation of the provision to the subject-matter and of the acts of congress relating to citizenship, it seems clear to the undersigned that such persons are natural-born, that is, citizens by origin; and that, if otherwise qualified, they are eligible to the office of president….

In respect to the citizenship of children of American parentage, wherever born, the principle of ius sanguinis seems to be the American principle; that is to say, the law of hereditary, rather than territorial allegiance, is recognized, which is modern, as distinguished from the ancient, and at one time, common-law principle of jus soli. If the provision was as sometimes inaccurately cited, namely, that the president must be “a native-born citizen,” there might be no question as to its meaning. But the framers generally used precise language; and the etymology actually employed makes the meaning definite. Its correspondent in English law, “natural-born  subject,” appears in constitutional history and parliamentary enactments; and there it includes all children born out of the king’s allegiance whose fathers were natural-born subjects; and the children of such children (i. e., children whose grandfathers by the father’s side were natural-born subjects), though their mothers were aliens, are now deemed to be natural-born subjects themselves to all intents and purposes, unless their said ancestors were attainted or banished beyond sea for high treason, or were at the birth of such children in the service of a prince at enmity with Great Britain.

Warren Freedman, Presidential Timber: Foreign Born Citizens of American Parents, 35 Cornell L.Q. 357, 357 (1950):

It is submitted that a foreign born child of American parents can rightly aspire to the position of President and hold such high office in accord with the eligibility requirements laid down both under common law principles and the entire body of statutory law.

Warren Freedman, Presidential Timber: Foreign Born Citizens of American Parents, 35 Cornell L.Q. 357, 357 (1950):

In support of the Morse view are Professor Frederick Van Dyne, author of numerous books on citizenship and former Solicitor of the State Department,62 and Professor Luella C. Gettys, distinguished Carnegie Fellow in International  Law and author of The Law of Citizenship in the United States.63 The only apparent authority to the contrary is the prolific writer on all phases of government, Professor Westel W. Willoughby,64 who finds a qualified citizenship” because the Act of 1907 65 requires a determination by the foreign born child of American parents to come to the United States before the age of eighteen so as to indicate an intention to become a resident and remain a citizen; therefore, one whose citizenship is so “qualified” cannot be deemed a “natural born citizen”. Professor Willoughby cites the case of Weedin v. Chin Bow,66 wherein the citizen parents never did reside in the United States, and therefore could not pass on to their offspring any “citizenship”, much less that of being a “natural
born citizen” under U. S. CoNsT. Art. II, § 1, cl. 4. The entire argument stems from too recent an analysis of nationality statutes without reference to the earlier statutory and constitutional law of the days of the adoption of the Constitution, discussed above.

Prof. Gabriel J. Chin, Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship, 107 Mich. L. Rev. First Impressions 1 (2008):

The Supreme Court has held that there are only two ways to become a citizen: 1) birth in the United States, thus becoming a citizen under the citizenship clause of the Fourteenth Amendment or 2) satisfaction of every requirement of a statute enacted by Congress granting citizenship to a class of people. The second category includes naturalization of individual adults or children already born; collective naturalization of groups, such as natives of territory acquired by the United States; and naturalization at birth of certain classes of children born abroad to citizens. Those born in the United States are uncontroversially natural born citizens. There is also a strong argument that those obtaining citizenship at birth by statute are natural born citizens, well articulated by Charles Gordon in Who Can be President of the United States: The Unresolved Enigma. However, natural born citizenship can be acquired only at the moment of birth….

Peter J. Spiro, McCain’s Citizenship and Constitutional Method 107 Mich. L. Rev. First Impressions 42 (2008)(also here):

On the question of restricting presidential eligibility only to those born within the territorial United States, most observers now seem to consider it settled that a presidential candidate can qualify as a natural born citizen even if born outside the United States proper….

Christina S. Lohman, J.D., Presidential Eligibility: the Meaning of the Natural‐Born Citizen Clause, 36 Gonz. L. Rev. 349 (2000)

This Article further asserts that the constitutional Framers had an even broader conception of “natural born,” however, and deemed all foreign‐born children of American citizen parents eligible for the Office of the Presidency. This judgment stems from examination of a statute passed by the First Congress that arguably serves to interpret “natural‐born.”

14. CONCLUSION – It’s The Text

By now your heads must be spinning.  It’s understandable. This is a very confusing area as to which scholars acting in good faith disagree, although there is a clear weight of authority.  But those disagreements, in a sense, are the solution.

A reasonable reading of the plain text of the Constitution supports Rubio, Jindal and Cruz being “natural born Citizen[s]” because they were citizens by birth.  There is no clear, demonstrable intent otherwise from the Framers or clear, commonly understood use of the term to the contrary at the time of drafting the Constitution.  The British term “natural born Subject” as well as concepts of “natural law” were not clearly relied upon by the Framers, and are in themselves not clearly contradictory to this plain reading of the text.

The burden should be on those challenging otherwise eligible candidates to demonstrate through clear and convincing historical evidence and legal argument why such persons should be disqualified.  That has not happened so far, and if two hundred years of scholarship is any indication, it never will happen. 

The ultimate arbiter on the issue likely is to be voters, not Supreme Court Justices.

It is for these reasons that I believe Marco Rubio, Bobby Jindal and Ted Cruz are eligible to be President.

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