I had an interesting exchange by email with a reader I’ll identify (at his request) just as TJ, an independent researcher, about the original meaning of “natural born citizen” and my views expressed in this post. We’ve covered a lot of ground so I’m just going to pick out a part of it here, regarding the Supreme Court’s 1874 decision in Minor v. Happersett.
Minor principally asked whether women who were U.S. citizens had the right to vote as a “privilege or immunity” of citizens of the United States guaranteed by the Fourteenth Amendment. The Court of course decided they did not (because, it said, voting was not a privilege or immunity of citizens of the United States). But first it had to decide whether Mrs. Minor was a citizen, and it held she was, because she was born in the United States of U.S. citizen parents. The question is, does this matter for the original meaning of “natural born citizen” in the eligibility clause?
TJ initially commented:
I tend to go with the definition of natural-born citizen given in Minor v Happersett – “At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”
If we consider that all those born in the country who do not meet those conditions are aliens or foreigners until the operation of statute or man made law, that definition makes sense to me.
Later he elaborated:
Regarding the statement in Minor:
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.”
[It] states who were citizens, and that “natural born citizens” are those born in a country of parents who were its citizens. I think that the court stated what the definition was, according to their understanding.
The reason there were doubts if the children born within the jurisdiction without reference to the citizenship of their parents were “citizens” or not was because some state legislatures had laws on the books that the children of aliens, or of transient aliens, were not citizens of the state. They were following the original meaning of “subject to the jurisdiction thereof” as debated in Congress at the time of the 14th amendment. They thought that it followed the original statute in the Civil Rights Act of 1866 which stated;
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States …”
The rationale was that children of aliens were subject to a foreign power through their parents, and were thus not citizens at birth.
It appears that the Congress in 1845 also thought that the children of aliens were not citizens by virtue of birth in the US alone. Congressman Saunders, in his report on Naturalization said:
“First, the act of 1802, which repeals all former acts, … It further provides for the children of aliens, whether born within or out of the United States …”The Congressional Globe [Appendix., 28th Cong., 2d sess., House, p. 129].
I agree with most of this discussion, as far as it goes. In particular, I agree that there was debate in the mid-nineteenth century on whether “natural born” included children born in the United States of alien parents; it’s interesting and notable that some states had statutes specifically saying that such persons (or some such persons) were not citizens of the state. On the other hand, as the Court in Minor acknowledged, there was plenty of authority the other way. And the Court went on to say (immediately after the passage TJ quotes above):
For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last, they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea.
As a result, I don’t think Minor has direct implications for the original meaning of the eligibility clause (it’s more significant for the Fourteenth Amendment). First, it was decided long after the clause was adopted. Second, it (properly) did not purport to decide the question, and recognized that there were authorities on both sides; it limited itself to the wholly non-controversial proposition that persons born in the U.S. of U.S. citizen parents were citizens. (Incidentally, the Court’s argument for why this included women is very persuasive and well-argued on historical textualist grounds). Third, it did not point to specific evidence from the founding era in support of either side.
I do think Minor, and TJ’s comments above, raise an important question: when did the question (of the citizenship of U.S.-born children of alien parents) become unsettled? At least some of the state laws in question were from the 1840s or later, which do not seem very useful on the question of the original meaning of the 1789 Constitution. (Moreover, state statutes in themselves do not suggest that the common law was unsettled; the states may well have had — or thought they had — the power to change the common law by statute). My impression is that there is not evidence of material dispute in the immediate post-ratification period. But this is an important research issue, and I’m not prepared to make any definite statement on it.
For me, though, the more important question is where the law stood prior to the Constitution. In my response to TJ, I said:
Blackstone is very clear that persons born in England to alien parents were English subjects, and it seems fairly clear that this carried over to “citizens” after the revolution.
He had a response to that, which will be the subject of another post.
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.