Reality Check wrote:
Sterngard Friegen wrote:Completely misses the point of this thread. Rogers v. Bellei establishes that, as a matter of law, jus sanguinis citizenship is not impelled by any constitutional principle but is entirely a creature of statute which can be withheld at the whim of Congress. Jus sanguinis citizenship, according to case law, results from a naturalization process. As a result, a jus sanguinis citizen cannot be a natural born citizen.
You are assuming that citizens by statute cannot be natural born citizens. I don't think it is clear that is the case. The authors of the Constitution would have understood that "natural born subjects" under British law included both those born on the soil and subjects born abroad to British subjects who were natural born via act of Parliament. Is it not reasonable to conclude that the use of the term natural born citizen by the authors would have included both? The terms natural born citizen and natural born subject were used interchangeably until at least the time of the Constitution. There is no record that the meaning of the term was changed when it was included in the Constitution in the presidential eligibility section. I believe that you have to make the case that there is a class of "born citizens" who are not natural born. I haven't seen that case convincingly made yet.
I apologize for the length of this post. I think the legal reasoning is relatively straightforward, but the background facts do need some explaining.
I think that the founders (or at least those with adequate legal training) would have been understood "natural born subject" in about the same way that adequately-trained English lawyers would have: there are those who are natural born by operation of common law, and those who are natural born by operation of statute. I think this view is supported by both English caselaw of the time, and by the language used in the 1790 Naturalization Act, which largely tracked English statutory practice in the same area. In English practice, while natural born status could be conferred by both common law and statute, and while language was used interchangeably to refer to both, the two were not absolutely identical in all regards.
As a starting point, I think all of us are agreed that children born within the territorial jurisdiction of the sovereign are natural born citizens under the common law. (If there's an Aputzian here, please speak now or forever hold your peace.) I think it's also clear that English statutes dating back several centuries were consistent in conferring natural born status on those born abroad to citizen parents. Based on that, I don't think the founders would have had a problem with the idea that natural born citizenship could be conferred by statute on the children of citizens born abroad. If they had, they would probably not have included just such language in the 1790 act.
Given this, and given the removal of the "natural born" language in the 1795 naturalization act, the question for me is no longer whether the founders would have accepted that natural born status could be conferred on children of citizens born abroad by statute. Instead, the primary question is whether the founders would have viewed the children of citizens born abroad as natural born citizens in the absence of a statute conferring natural born citizenship. There's also the related question, of course, of whether there were any practical implications at the time to the question of whether such citizenship was part of the common law, or conferred by statute.
Surprisingly, it seems that there actually was reason at the time to care whether the citizenship status of those born abroad was purely statutory, or based in common law - at least for those concerned with the laws of inheritance as applied to large estates. Modern law has done away with the "fee tail," which is a form of landownership that keeps land in a single family by making it very difficult (if not impossible) for the current holder to sell the property instead of passing it on to the next generation via inheritance. Under the common law, aliens could not inherit land, which lead to cases where the citizenship of the claimant to a fee tail inheritance was fairly intensely litigated.
One such example that I've found is the 1763 House of Lords case of Leslie v. Grant. In this case, the question was whether the grandson of a natural-born subject of England was an alien and therefore incapable of inheriting estates when his father was also born overseas (and therefore out of the jurisdiction of the sovereign). This case involved fairly complex fee tail estate that was structured to keep two sets of land separate, and under the control of different branches of the family. The case came to the courts when the overseas-born father succeeded to both estates. Despite his overseas birth, there was no doubt that the father would be the proper heir, were it not for the provision keeping the two estates from falling into one set of hands. The second estate therefore had to go to the next heir in line, and the question became whether foreign-born father's foreign-born son could inherit.
If the overseas-born father was a common-law natural born subject, his son would also be a natural born subject, and so on. The court held that the son was not a natural born subject, with one Law Lord specifically noting that the naturalization statues dating back to Edward were not declaratory of the common law. The court then proceeding to examine the issue under statutes, and found that while the father was entitled to be treated as a natural born subject by operation of statute, the statutes could not be read so broadly as to allow his son to also be treated as such. The concern of the judges (and I do have to give Fortinbras a bit of a hat tip here) was that such a reading would work "inconveniences" because "it would let in all sorts of persons into the family rights, Jews, French, &c., without any test or qualification - without any residence." So even though the statute gave the father all the rights of a natural born citizen, it didn't make his son a natural born citizen.
I think that's a case that at least some of the lawyers would have been aware of when the Constitution was being drafted, and it's a case that shows that there was a real distinction between natural born under common law, and natural born by statute. (A common law natural born citizen could always pass on natural born citizenship; a statutory natural born citizen could not.) And, while the reasons for the distinction were xenophobically expressed, there was a real policy reason for the distinction: barring the second or third generation born abroad be from inheriting estates simply because they were the "correct" heirs in a fee tail scheme, despite their lack of any meaningful connection with the country or the land. (In modern times this issue has largely evaporated due to changes in the language of citizenship statutes and the effective abolition of fee tail, but it was certainly a live issue in the mid-18th Century.)
When you take the English caselaw, and add in the 1st Congress' drafting of a statute that largely mirrored English statutory practice, I think there's a fairly compelling case that the founders did view natural born citizens as being the equivalent to English natural born subjects. However, that view requires a statute to make those born abroad natural born citizens - and while they passed just such a statute in 1790, the "natural born" language was removed in 1795.
And it's that 1795 law that remains the primary sticking point for me. Everything I've seen indicates that natural born citizenship could be extended to the children of citizens born abroad through statute. However, everything I've seen also indicates that at the time the Constitution was drafted, natural born citizenship could only be extended to the citizens born abroad through statute - and the statute that did so was repealed in 1795.