Ramsey on the original meaning of “natural-born citizen”

One of my more popular posts from 2015 discussed the eligibility of Republican Presidential candidates Marco Rubio and Ted Cruz. 1 Unlike the attacks on President Obama, which turned on (spurious) allegations of fact regarding the President’s birthplace, the questions raised about Rubio and Cruz involve the discernment and application of law to established facts. As an originalist, 2 I read the presidential eligibility clause as taking “natural-born,” a phrasal adjective that had established meaning in English law by the time of the framing and substituting for the royalist “subject” the more appropriately-republican “citizen.” Under this approach, Senator Rubio is plainly a natural-born citizen, but Senator Cruz’s eligibility is a harder, murkier question.

Michael Ramsey, one of the foremost originalist scholars of our time, 3 takes up the issue a new paper posted at SSRN. 4 Like me (and contra the article by Paul Clement and Neal Katyal that I discussed in my post) Ramsey is unpersuaded by the conventional wisdom; his analysis tracks mine, in the main, although in much more detail, as you would expect. He discusses in much greater detail than did I not only the development of English law—both common law and statute—but also the alternative European view elucidated by Vattel, which he considers and dismisses as a possible source of the original understanding. He also provides a more elaborate explanation of why it is the gestalt of English law that controls, rather than common-law or statute law specifically.

Ramsey takes an unexpected turn, however, and adds a caveat that is relevant to Sen. Cruz’s situation. Ramsey argues that English legal history demonstrates that parliament had assumed the power to modify the common-law, declaring not only that certain persons might be subjects, but even natural-born subjects; from this, he concludes that because Congress is expressly granted the naturalization power, it has the authority to not only “naturalize” in the normal sense, but also to declare who shall be a natural-born citizen. 5 This explains, in Ramsey’s view, why the first Congress seemingly exercised that power in the Naturalization Act of 1790. 6 Nevertheless, that Congress can make natural-born citizens, Ramsey notes, doesn’t mean that it must, or that any particular naturalization statute (such as, oh, say, 8 U.S.C. § 1401(g)) can or should be read as doing so. 7

This is a serious, well-grounded argument. But I am not quite convinced. Ramsey is certain that there is one naturalization power; if Parliament not only made subjects but also modified the common-law on who was a natural-born subject, he assumes, these are each exercises of a single power, the “naturalization power,” which was then conferred on Congress, which may now likewise not only mint citizens but declare natural-born citizens. In support of this view, he observes that the statutes by which Parliament tinkered with the common-law of natural-born subjects generally used the term “naturalize” in their titles. 8 Nevertheless, it seems to me that insofar as the founding generation’s principal authority on the law of England was Blackstone, 9 it is surely of great moment that Blackstone first classified the people within the realm as aliens and natural-born subjects, and then grouped with the former aliens of modified status, i.e. those who had been denizenized or—vitally here—naturalized. 10 As my previous post observed, “[t]he first and most obvious point to take from [Blackstone] is that a ‘natural-born’ subject is distinct from the ‘artificial’ subject, whether denizenized or naturalized.” And critical now to add is that even if Blackstone’s description is mistaken, overstated, or oversimplified as a matter of English law, I am not sure that that would make a difference: Perhaps I am overstating Blackstone’s influence, but it is not the actual content of English law that undergirds the original understanding, but what Americans of the time thought that content to be, and Blackstone, I had thought, was their principal source. If for the framers the naturalization power was the power to make citizens of persons who were not natural-born citizens, it would be be difficult to conclude that the unadorned naturalization power given to Congress included the power to define who was a natural-born citizen.

Moreover, the 1790 act, it seems to me, isn’t definitive. Ramsey concedes that it may not be dispositive, because that provision could, after all, have been unconstitutional; such an interpretation is usually disfavored, but unlike, for example, the chaplains at issue in Marsh v. Chambers, the provision in the 1790 act was repealed only five years later and never returned. 11 But there is another reason to cock an eye at the 1790 act: It’s unclear whether Congress actually exercised the power that Ramsey thinks it did. The act can be explained (plausibly, albeit not necessarily convincingly) by a close look at the text: “[T]he 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….” 12 That text is ambiguous on its face: Ramsey, like most commentators, assumes that we must parse it as “shall be considered as being natural-born citizens,” but it could also be parsed as “shall be considered as if natural born citizens,” which cuts the other way. A cursory search of materials from the first Congress does not immediately reveal other uses of the key phrase “shall be considered as,” let alone in a less ambiguous context, but the sole use of the phrase in the second congress seems (although not beyond cavil) to cut in favor of the latter. 13

But all this is to dispute over small things. Even if I were beyond persuasion on this difference, however (which I am not), Ramsey’s contribution is a serious and welcome one. Although it doesn’t resolve the remaining difficulties involving Sen. Cruz, it underscores that the question is not frivolous and points to the correct analytic approach. The best resolution of those difficulties, we will leave for another day.

Notes:

  1. Dodd, Eligibility questions about Cruz and Rubio, Motu Proprio, March 23, 2015, http://simondodd.org/blog/?p=1842, 5 MPA __ (2015).
  2. See generally Antonin Scalia & Bryan Garner, Reading Law § 7 (2012); cf. Dodd, Party like it’s 1899, Motu Proprio, Jul. 3, 2015, http://www.simondodd.org/blog/?p=1948, 5 MPA __; Dodd, Judicial Conservatism and the Obamacare Cases, 2 MPA 26, 33 ff. (2012).
  3. I have cited his work before in, for example, For the record: Netanyahu’s visit, Motu Proprio, Jan, 29, 2015, http://simondodd.org/blog/?p=1743, 5 MPA __.
  4. Ramsey, The Original Meaning of “Natural Born.” Available at SSRN:http://ssrn.com/abstract=2712485 or http://dx.doi.org/10.2139/ssrn.2712485.
  5. Ramsey, pp.29-33.
  6. Id., pp.31-32.
  7. Id., p.34 n.126.
  8. Id., p.31; see id., pp.14-17.
  9. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 712 (1997).
  10. See 1 William Blackstone, Commentaries on the Law of England 354, 361-62 (1765).
  11. Ramsey, supra, p.34 n.126.
  12. 1 Stat. 103, 104 (1790).
  13. See Journal of the Senate of the United States of America, available at http://rs6.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(sj0011)), p. 365 (Jan. 10, 1792):

    And be it further enacted, That it shall and may be lawful for the Postmaster General to enter into contracts, for a term not exceeding five years, for extending the line of posts, and to authorize the person or persons so contracting to receive, during the continuance of such contract, according to the rates by this act established, all the postage which shall arise on letters, newspapers, and packets, conveyed by any such post; and the roads therein designated shall, during the continuance of such contract, be deemed and considered as post roads, within the terms and provisions of this act….