Toward Natural Born Derivative Citizenship
| Author | John Vlahoplus |
| Position | Member, New York State Bar. I am grateful to the Editor, staff and anonymous referees of the British Journal of American Legal Studies for their insightful criticisms and editorial support |
| Pages | 71-114 |
Toward NaTural BorN derivaTive CiTizeNship
John Vlahoplus*
ABSTRACT
Senator Ted Cruz’s campaign for the Republican presidential nomination again raised
the question whether persons who receive citizenship at birth to American parents
abroad are natural born and eligible to the presidency. This article uses Supreme Court
decisions and previously overlooked primary source material from the Founders, the
First Congress and English and British law to show that they are not natural born under
the doctrinal or historical meaning of the term. The relevant constitutional distinction
is between citizenship acquired by birth or by naturalization, not at birth or afterward.
It argues further that a living constitutional theory cannot justiably interpret the
term more broadly because derivative citizenship statutes have long discriminated on
grounds including race, gender, sexual orientation, and marital and socioeconomic
status. The Supreme Court upholds them even though they would be unacceptable if
applied to citizens because they merely discriminate against aliens. Moreover, many
who assert presidential eligibility or other constitutional privilege for children born
to American parents abroad intend to favor traditionally dominant groups or rely on
political theories of bloodline transmission of national character that the Supreme
Court used to justify its infamous decision in Dred Scott v. Sandford. No justiable living
interpretation can incorporate such discrimination or discredited political theories in
qualications for the highest ofce in the land.
The article examines the meaning of the term “natural born” in the broader context
of similar discrimination in English and British law from which American law developed.
It acknowledges the difculty of reconciling centuries of derivative nationality law and
practice with our highest constitutional ideals of equal protection of the law. It concludes
by identifying threshold requirements for and a possible approach to developing a
justiable living constitutional interpretation of natural born derivative citizenship.
KEYWORDS
Constitutional Law, Presidential Eligibility, Natural Born Citizen, Legal History, Four-
teenth Amendment.
CONTENTS
Br. J. Am. Leg. Studies 7(1) (2018), DOI: 10.2478/bjals-2018-0002
© 2018 John Vlahoplus, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
* Member, New York State Bar. I am grateful to the Editor, staff and anonymous referees of the
British Journal of American Legal Studies for their insightful criticisms and editorial support.
iNTroduCTioN ................................................................................................... 73
i. iNeligiBiliTy of derivaTive CiTizeNs ............................................................ 75
A. U.S. Citizenship .................................................................................... 76
B. Natural Born Citizenship “By Birth” .................................................... 76
C. Citizenship “By Naturalization” ............................................................78
7 Br. J. Am. Leg. Studies (2018)
D. Fourteenth Amendment ...................................................................81
E. Rogers v. Bellei ................................................................................82
ii. oBjeCTioNs aNd alTerNaTive Theories ..................................................83
A. Alleged Opacity and Ambiguity of the Term “Natural Born Citizen” ...83
B. Three Alternative Theories ..............................................................87
1. Substantive theory .....................................................................87
2. Procedural theory .......................................................................95
a. Supreme Court precedents ...................................................96
b. Constitutional history and structure ....................................97
c. The Naturalization Act of 1790 ...........................................99
3. Hybrid theory ...........................................................................101
iii. CoNsisTeNCy wiTh eNglish aNd BriTish iNTerpreTaTioNs ..................104
A. The Common Law ........................................................................104
B. Naturalization and Non-transmission of Nationality ....................105
C. Inconsistencies in English and British Interpretations ..................106
1. Common law rule ....................................................................106
2. Effect of post-natal naturalization ...........................................107
3. Operation and effects of the Acts ............................................108
D. Conclusion ....................................................................................112
iv. NaTural BorN derivaTive CiTizeNship: Threshold
requiremeNTs aNd a possiBle approaCh .................................... 113
72
Toward NaTural BorN derivaTive CiTizeNship
iNTroduCTioN
“He cannot be a subject born of one kingdom that was born under the
ligiance of a king of another kingdom. 18.a.” Thomas Jefferson, Notes
on British and American Alienage, [1783]1
“A person born out of the jurisdiction of the United States can only
become a citizen by being naturalized, . . . as in the enactments conferring
citizenship upon foreign-born children of citizens . . . .” United States v.
Wong Kim Ark, 169 U.S. 649, 702-03 (1898)
“Citizenship obtained through naturalization . . . carries with it all of the
rights and prerogatives of citizenship obtained by birth in this country
‘save that of eligibility to the Presidency.’” Knauer v. United States, 328
U.S. 654, 658 (1946)2
Senator Ted Cruz’s campaign for the Republican presidential nomination again
highlighted the Constitution’s natural born citizenship requirement for presidential
eligibility.3 Sen. Cruz was born out of the jurisdiction of the United States.4 An act
of Congress conferred citizenship upon him as the foreign-born child of a citizen
parent.5 Therefore under U.S. constitutional history and Supreme Court doctrine
Sen. Cruz is a naturalized citizen who has all of the rights obtained by birth in the
United States except presidential eligibility.6
Some legal scholars consider the doctrinal and historical meaning of the
term “natural born” to be outdated and suggest that judges could interpret it more
broadly to include persons who receive citizenship under congressional statutes
because of their birth to American parents abroad (“derivative citizenship”).7
1 National Archives [1783], http://founders.archives.gov/documents/
Jefferson/01-06-02-0346. Jefferson’s citation is to Coke’s report of the decision in Calvin
v. Smith (1608) 7 Co. Rep. 1a, 77 Eng. Rep. 377, 2 St. Tr. 560 [hereinafter Calvin’s Case],
http://hdl.handle.net/2027/nyp.33433009487145. Coke’s report “is the earliest, most
inuential theoretical articulation by an English court of what came to be the common-
law rule that a person’s status was vested at birth, and based upon place of birth” and
“became the basis of the American common-law rule of birthright citizenship . . . .” Polly
J. Price, Natural Law and Birthright Citizenship in Calvin’s Case (1608), 9 yale j.l. &
humaN. 73, 74 (1997) (citation omitted). For Coke’s denition of a “subject born” and
equating it with a “natural born subject” see Calvin’s Case, 7 Co. Rep. at 18a.
2 Quoting Luria v. United States, 231 U.S. 9, 22 (1913).
3 U.S. CoNsT. art. II, § 1, cl. 5.
4 See Response of Senator Cruz to Petitions at 2, In re Petition of Elliott, Petition of Booth,
and Petition of Laity, The State of New Hampshire Ballot Law Commission (Nov. 20,
2015), http://sos.nh.gov/WorkArea/DownloadAsset.aspx?id=8589951054 [hereinafter
Response].
5 Id. at 23-24.
6 See, e.g., Mary Brigid McManamon, The Natural Born Citizen Clause as Originally
Understood, 64 CaTh. u.l. rev. 317 (2015) and Brief Amicus Curiae of Prof. Einer
Elhauge on the Justiciability and Meaning of the Natural Born Citizen Requirement 13
(March 22, 2016), https://ssrn.com/abstract=2748863.
7 See, e.g., Laurence H. Tribe, Under Ted Cruz’s own logic, he’s ineligible for the White
House, BosToN gloBe (Jan. 11, 2016), https://www.bostonglobe.com/opinion/2016/01/11/
73
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