In thinking about the phrase “natural born Citizen” in the Constitution’s eligibility clause, I have assumed (1) that it follows from the English law phrase “natural born subject” and (2) that “natural born subject” at minimum meant anyone born within sovereign territory (apart from children of invaders and diplomats). The latter point seems clear from Blackstone, who says as much, quite clearly. (The first point is contested, as some people think the phrase derives not from English law but from the Swiss writer Vattel).
The Law dictionaries have said :
“…that if one born out of the king’s allegiance come and dwell in England, his children, begotten here, are not aliens, but denizens.”
Nomo-lexikon: A Law-dictionary : Interpreting Such …
Thomas Blount – 1670
Nomothetēs, the Interpreter: Containing the Genuine …
John Cowell, Thomas Manley – 1684
A Law Dictionary: or the interpreter of Words and Terms,1708
Law Dictionary link
Cyclopaedia, Or an Universal Dictionary of Arts and …
Ephraïm Chambers – 1741
A New Law Dictionary Containing the Interpretation and … – Page iii
Giles Jacob – 1750
New Law Dictionary Link
Lex Mercatoria Rediviva: Or, The Merchant’s Directory: … – Page 276
Wyndham Beawes, Jacques Savary des Brûlons – 1773
Lex Mercatoria Link
The sources appear to check out (the phrasing is similar in each, suggesting a common origin). And it’s clear that a “denizen” in English law was not a natural born subject, but rather an intermediate status between alien and subject.
This possibility raises a puzzle not just for the eligibility clause, but for originalist methodology more generally. Blackstone was by far the framers’ most important source for the content of English law. But what if Blackstone was wrong? That is, suppose the framers took a phrase from English law which they knew Blackstone defined in a certain way, but suppose also that Blackstone defined it incorrectly (as a matter of what English law actually was). What is the original meaning of that phrase in the Constitution? What Blackstone said it meant (and so what the framers likely thought it meant), or what it “really” meant?
I confess to not having an immediate answer.
NOTE: This 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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