Congress’ Power to Define ‘Natural Born’: A Reply to Professor Lee

I have posted a new short essay on SSRN: Congress’ Power to Define ‘Natural Born’: A Reply to Professor Lee (American University Law Review Forum. vol 68, 2018, forthcoming).  As the name indicates, it is a reply to Professor Thomas H. Lee’s outstanding article “Natural Born Citizen,” 67 Am. U. L. Rev. 327 (2017) (SSRN version available here).  Here is the abstract:

Professor Thomas Lee and I independently wrote recent articles on the original meaning of the Constitution’s “natural born Citizen” clause, reaching somewhat different conclusions. This brief reply comments on our agreements and differences.

Two points of agreement merit particular emphasis. First, we agree that the original meaning of “natural born” in the eligibility clause can be understood in significant part through its English law antecedents, specifically the English law concept of natural born subjectship. Second, we agree on the basic evolution of English subjectship law – specifically, that it began in ancient times as almost exclusively based on the principle of jus soli, or subjectship arising from a person’s birth within sovereign territory, and evolved through a series of statutes to also include elements of the continental European principle of jus sanguinis, deriving subjectship from the subjectship of a person’s parents.

We principally disagree on how the Constitution, through the eligibility clause, adopted English law’s incorporation of jus sanguinis. In Professor Lee’s view, the eligibility clause adopted English subjectship law’s definition of “natural born” largely as it stood in 1787. My view, as described in more detail in The Original Meaning of “Natural Born,” is that the clause – combined with Congress’ power over naturalization – gave Congress some power to adopt and define the parameters of jus sanguinis citizenship, similar to parliament’s power to adopt and define the parameters of jus sanguinis subjectship in seventeenth and eighteenth century England.

For a different perspective, see John Vlahoplus, Toward Natural Born Derivative Citizenship, 7 British Journal of American Legal Studies 71 (2018) (SSRN version available here) and John Vlahoplus, Natural Born Citizen’: A Response to Thomas H. Lee, 67 American University Law Review Forum 15 (2018) (SSRN version available here).

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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