[This is G; that’s G Sallust, in case you’ve forgotten. You may have noticed that lately we’ve been doing quite a bit on a “birther” theme, that is, on whether anyone can be President of this country without having been born in it. No doubt you realize this argument isn’t popular in some quarters. There’s a feeling out there that it’s unfair, or possibly unconstitutional, for the Constitution to prevent people born in other lands from being our President. Any citizen, it’s argued, ought to have the right to run and bamboozle the public into voting for him, or her. If a candidate succeeds, then so be it. Lawyers and judges shouldn’t try to upset the result with technicalities.

Of course, we like technicalities here at Elemental Zoo Two, especially if they’re unpopular; the problem is that the deeper we go into the birther theme, the more we seem to find. Lately we’ve been stumbling onto new material and issues practically every week.  I for one don’t think we should write about this topic every time we do a blog post; but on the other hand, if we find something new, or change our minds on something, we ought to have a way to tell you. So I’ve proposed a compromise to the guy who bird dogs this matter for us.

“Larry,” I said, “let’s write an issue paper on the subject, and update it from time to time. That way you don’t have to repeat the context every time we learn something new. Instead, we’ll just amend a pre-existing document by adding the new stuff or making other, appropriate changes.” Mirabile visu[1], Larry agreed. So, here’s the first iteration of our paper on the birther theme. Note that we’re very cleverly using a question and answer format to frame the issues. Don’t laugh; that took a lot of thought. And in this area it’s not easy to ask questions that are answerable.

You’ll see what I mean].

1.Where does it say that our President must be born in this country?

That’s easy. Article II, Section 1 of the U.S. Constitution[2] says so. It doesn’t set a high bar, but it does impose a few requirements that candidates must meet to qualify. It says:

No Person except a natural born Citizen … 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.[3]

For our purposes, the key restrictions are that any President must be (i) a citizen, and (ii) “natural born.”

2. Are these stand-alone restrictions, or do they pop up elsewhere in the Constitution? Suppose I’m Vice President, and not “natural born.” If the President is incapacitated, etc. can I succeed him [or her]?

Actually, the 12th Amendment[4] answers this question. The drafting of our Constitution was a complex and messy business, chronicled in two volumes, published by the excellent Library of America.[5]  Our Constitution was written by a convention in Philadelphia and sent out to the states for ratification. Numerous issues were raised in the back-and-forth with the states, with some offering only to “conditionally ratify” it. Once nine states signed on the new government was activated;[6] thereafter, more negotiations and amendments followed for some time; and the final document was accepted by 12 of the 13 original states on September 17, 1787.[7] Congress proposed the first 10 Amendments, aka the Bill of Rights, to the states on March 4, 1789; and they were ratified by December 15, 1791.[8] The 12th Amendment, dealing with changes to the Electoral College, was declared ratified on September 25, 1804.[9] There were no further amendments until 1865.

The 12th Amendment is the one that concerns us here. Article II, Section 1 of the Constitution set out a process for electing a President [and a Vice President] that is more or less similar to the one we have today.  It provided, in essence, that each state would appoint electors, equal in number to the sum of their senators and representatives, who in turn would elect the President and Vice President.[10] The Electors would met in their respective states, and report their results to the Congress. If no candidate for President or Vice President had a majority of the electors, the election would be thrown into the House of Representatives. The 12th Amendment for the most part tinkered with the way the House would make this decision.  That’s not important to the current discussion, but who knows what might be important in November?

But the 12th Amendment also expanded the list of those who have to meet the requirements of Article II Section 1. The Amendment says, in its last sentence, “But no person, constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.”[11] So, the President and the Vice President have to be “natural born” citizens.

3. OK, so the words are there. Is there any evidence people back then really wanted to restrict the Presidency, and the Vice Presidency, in this way?

Yes indeed. When the draft Constitution was first proposed, New York, for one, had a whole series of concerns, proposals, conditions, etc. While New York agreed to ratify, it also asked Congress to take “all reasonable means” to amend the document to provide that “no person, except natural born citizens … shall be eligible to the places of President, Vice President, or members of either house of the Congress of the United States.”[12]

At the moment I don’t know what happened to New York’s proposal vis-à-vis senators and representatives; those are important jobs and you can see why some might think that they too should be held only by people born here; but I do know, for sure, that the President and Vice President have to be natural born citizens. It says so, right there, in Article II, Section 1 and in the 12th Amendment. The New Yorkers got their way on that score.

4. I’m not giving up. So the President [and Vice President] have to be “natural born” citizens. What does that mean? You’re just assuming that “natural born” means “born in this country.” How do you know that?

That’s a question I’ll have to answer in a roundabout way and, again, with even more context. First we have to look to the law the original colonists brought with them to North America.

English Common Law[13]

The 13 original Colonies were colonies of England. When the settlers came, they brought English law with them, and in many ways the Constitution was both an extension and a reaction to that. Currently I don’t have data on all of the Colonies, but Thomas Jefferson provides significant evidence of how English law migrated into Virginia. He outlined the process as follows:

The general assembly [of Virginia] was constituted … by letters-patent of March the 9th, 1607, in the 4th year of the reign of James the First. The laws of England seem to have been adopted by consent of the settlers, which might easily enough be done whilst they were few and living all together. Of such adoption however we have no other proof than their practice, till the year 1661, when they were expressly adopted by an act of the assembly, except so far as ‘a difference of condition’ rendered them inapplicable. Under this adoption, the rule, in our courts of judicature was, that the common law of England, and the general statutes previous to the 4th of James, were in force here;  … To those which were established here, by the adoption of the legislature, have been since added a number of acts of assembly passed during the monarchy, and ordinances of convention and acts of assembly enacted since the establishment of the republic. [14]

In short, as of the time the Constitution was adopted, the root law, in effect in Virginia, was the law of England, but with changes made by the Virginia legislature.  Jefferson, for example, made extensive use of English law when he drafted a Virginia criminal code. [15]

Probably this was true for the other colonies as well. The original 13 Colonies were English, and familiar with English law, so naturally they would start with it when they developed rules to suit their particular circumstances.

English Common Law and the U.S. Constitution

So what happened to English Common Law when the U.S. Constitution was adopted? Once again the available documents point us to Virginia, this time to the comments of its Governor, Edmund Randolph, who supported ratification.[16] In the debate over ratification an objection was raised to the effect that the new Constitution did not “establish,” and by that I think the objector meant did not “specifically adopt,” the common law.[17] The Governor responded that that was a good thing. “The wisdom of the [Constitutional] Convention is displayed by its [the common law’s] omission; because the common law ought not to be immutably fixed.”[18] No one wanted that, because many parts of it were not appropriate for the United States. “I hope I shall not be thought to speak ludicrously, when I say, that the writ of burning heretics, would have been revived …”[19]

The solution, of course, was to employ the same strategy used by the colonial legislatures. Recognize the common law, but adapt it to the realities of the New World. “[The common law] is established … by an act of the Legislature, and can therefore be changed as circumstances may require it.”[20]

Interpreting Article II, Section 1

Now we come to the crux of the matter. Article II, Section 1 states that only a “natural born” citizen is “eligible” to be President of the United States.

  • Citizenship can be conferred by Congress.  The process is called naturalization; Congress has the power to establish a “uniform rule” to cover such matters[21]; and it has done so.[22] But citizenship also is conferred by birth; generally, one is a citizen of where one is born.
  • But who is “natural born?” This is a Constitutional requirement, so it can be changed, but only by formal amendment,[23]  and to date that hasn’t happened.  Indeed one can argue that the 12th Amendment did the opposite, by reaffirming and extending the reach of Article II, Section 1 to include the Vice President.

The phrase “natural born” comes from the common law, and has a specific meaning. It wasn’t modified or legislatively changed in any way; it was simply picked up and used by the Founders to limit the universe of people who could be President. To understand the limitation, we necessarily have to look at its root source.

5. I’ll try again. So, under the common law who is a “natural born” citizen?

We’ve been down this road before, most recently in the blog of February 7.[24] I’m kind of partial to that post – it was succinct and well written – so pardon me if I borrow from it. It’s not really plagiarism if you copy yourself, is it?

If you look at the legal writings of the day, for example at William Blackstone’s Commentaries on the Laws of England,[25] you’ll see that they divided the people of a country into those born inside and those born outside of it. “Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or, as it is generally called, the ligeance of the king; and aliens, such as are born out of it.[26]

The part about being born in the ‘dominions of the crown’ is clear enough; it means a person is natural born if born in the crown’s territory; but what does it mean to be born in a king’s ‘ligeance?’ We don’t have any kings in this country. Billionaires, media personalities and so forth, but no kings. Well, “ligeance” is an old term, and not in our Constitution, by the way. It means “the territory subject to a king;”[27] if you’re born in the king’s ligeance, it means you’re born where he rules.

So in this context the phrases “dominions of the crown” and “ligeance of the king” are synonyms; both refer to the country of birth.  People born there are “natural born,”[28] and are citizens by virtue of their birth. Aliens are not automatically citizens of where they live. They may be granted citizenship only through naturalization. Taken in the context of its times, Article II Section 1 pretty clearly means what it also says on its face, i.e., to be President or Vice President [per the 12th Amendment] a person must be a citizen of and born in this country.

6. Interesting, if repetitive.  Do you have any other, perhaps more modern sources to support your view?

I don’t know why I would need any but, of course, for the lazy there’s always Black’s Law Dictionary.[29]  The 4th Edition defines a “natural born subject,” in English law, as “one born within the dominions, or rather within the allegiance, of the king of England.”[30] Plug that definition into Article II, Section 1 and you arrive at the same result as I. A “natural born citizen” is one who is born in the United States. But that’s taking the easy way out. Do it and you miss the adventure of tracking down the context, and some of the nuances of Article II.

[1] That’s Latin for “miraculous to behold.” Aren’t you impressed?

[2] For an authoritative version the U.S. Constitution, and its Amendments, check out the National Archives. For the Constitution, go to: http://www.archives.gov/exhibits/charters/constitution.html . That’s the version we’ll be citing here.

[3] See U.S. Constitution, Article II, Section I.

[4] If you want to look at the 12th  Amendment, go back to the National Archives, this time to http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html

[5] See The Debate on the Constitution, Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, Part One (September 1787 to February 1788) and Part Two (January to August 1788) (both LOA 1993). Henceforth these will be cited as DoC Part One or DoC Part Two at __.

[6] See DoC Part One at Chronology of Events, p. 1055 – 1115, especially p. 1098.

[7] The ratification data appear at the end of the National Archives transcript. See note 2.

[8] The “Bill of Rights,” also maintained by the National Archives, appears in transcript form at http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

[9] See DoC Part One at The Constitution, p. 984 – 985.

[10] See DoC Part One at The Constitution, p. 968 – 981, especially p. 975-976.

[11] Id. at 985.

[12] See DoC Part Two at Ratification of the Constitution by the Convention of the State of New York, p. 536 – 545, especially p. 541- 542. There are exceptions, not relevant here, for people who served in the war, etc. Ted Cruz wouldn’t qualify for any of those.

[13] We first discussed English Common Law back in 2010. See the Elemental Zoo blog of 12/22/2010, Treason, Treason, More on Treason, at http://elementalzoo.typepad.com/elemental-zoo/2010/12/treason-treason-more-on-treason.html  I’ve borrowed liberally from that blog to write this post.

[14] See Jefferson, Writings (LOA, 1984) at Query XIV (1787) p. 256, 258. There was an argument about whether English laws passed after 1697 applied to Virginia, but we don’t need to go into that now.

[15] See, for example, Jefferson, Writings, (LOA, 1984) at A Bill for Proportioning Crimes and Punishments (1778, 1779), pp. 349 – 364.

[16] See DoC Part Two at Governor Edmund Randolph on the “Necessary and Proper” Clause, Implied Powers and Bill of Rights (June 17, 1788), p. 707 – 717, especially p. 715- 716.

[17] Id. at 715-716: “But he objects, that the common law is not established by the Constitution.”

[18] Id. at 716.

[19] Id.

[20] Id.

[21] Article I, Section 8 of the Constitution says that Congress has the power to “establish [a] uniform Rule of Naturalization [of citizens].”

[22] Or many rules. See, e.g., Department of Homeland Security, U.S. Citizenship and Immigration Services, Citizenship Through Parents, available at http://www.uscis.gov/us-citizenship/citizenship-through-parents

[23] See U.S. Constitution, Article V: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

[24] That’s Miscellaneous Cruz, and it’s available at https://opsrus.wordpress.com/2016/02/07/miscellaneous-cruz/

[25] It’s not a stretch to use Blackstone’s treatise as a reference here. The Founders were aware of it, and no doubt some even had copies. For example, Alexander Hamilton cites Blackstone on habeas corpus. See Hamilton, Writings (LOA, 2001) at Federalist, No. 84, p. 468 – 469. For a general history of Blackstone’s Commentaries, see the Wikipedia entry at https://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_England. If you want to look at the volume we cite, go to The Federalist Papers Project, Blackstone, Commentaries on the Laws of England – Volume One, available at http://www.thefederalistpapers.org/political-philosophers/william-blackstone/commentaries-on-the-laws-of-england-volume-one . This is the 3rd Edition, printed in Oxford in 1768. Hereafter it will be cited as Blackstone Vol. 1 at __. There are other sources as well, most notably at the Yale Law School, Lillian Goldman Law Library, at http://avalon.law.yale.edu/18th_century/blackstone_bk1ch10.asp Yale has a slightly earlier edition.

[26] See Blackstone Vol. 1 at Ch. 10, The Rights of Persons, p. 366. Please note that I am translating these quotes from the old English spelling. If you think I’ve made mistakes, you’re probably correct.

[27] See The Compact Edition of the Oxford English Dictionary, Complete Text Reproduced Micrographically (Oxford University Press, 1971) at Vol. 2, ligeance, p. 268 – 269: “1. The obligation of a liege man to his liege lord; the duty of fidelity of a subject to his sovereign or government … 2. The sway or jurisdiction of a sovereign over his subjects or lieges; the territories subject to a sovereign.  Now only in legal use, for example: ‘All persons born out of the ligeance of the Crown of England.’”

[28] See also Dictionary.com, ligeance, available at http://dictionary.reference.com/browse/ligeance .

[29] This is a widely respected source, at least for legal definitions, that was first published in the 1890’s. If you don’t believe me, check out the Wikipedia entry on Black’s Law Dictionary at https://en.wikipedia.org/wiki/Black%27s_Law_Dictionary

[30] I chose the 4th Edition because it dates from 1968, about the time I was in law school, and I could download the pdf version for free. It’s available at http://www.nationallibertyalliance.org/files/docs/Books/Black’s%20Law%204th%20edition,%201891.pdf