I can’t resist thinking that the chance to twit the ever-pompous Cruz has led these scholars into sloppy thinking. There’s no evidence for Tribe’s sweeping claim that, at the time of the framing, “natural-born citizenship” required birth on American soil. That wasn’t a heritage from English law; as early as 1340, Parliament had proclaimed that children of two British subjects born abroad were British subjects by birth. William Blackstone, the great English jurist, had written in 1765 that, thanks to acts of Parliament, “all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”
McManamon quotes Blackstone but for some reason omits the language above. Sunstein descends to silly quibbling; he claims that the British statutes “suggest only that a national legislature can treat certain people, for purposes of citizenship, as if they were ‘natural born’—not that they are, in fact, natural born.”
Or, to put it another way, if you ignore the evidence, omit crucial parts of it , or torture its language, you can convince yourself that Cruz somehow would have had trouble qualifying for the presidency.
Or, wait, maybe 1789 isn’t what mattered.
The “natural-born” citizenship clause probably didn’t apply in 1789.
The United States of America was, at most, 13 years old that year. The Founders were eligible for the presidency because they were citizens “at the time of the Adoption of this Constitution.” Or maybe it was because they had been born citizens of one of the colonies that later became the United States. So, which law to apply? 1340? 1787? 1790, when the first Congress (which included 20 former delegates to the Philadelphia Convention, and 49 delegates to state ratifying conventions) proclaimed that foreign-born children of citizens “shall be considered as natural born citizens”? 1795, when a revised Nationality Act said, instead, that these children “shall be considered as citizens”? 1836, when Martin Van Buren became the first clearly “natural-born” citizen of the United States to enter the White House?
What’s happening to us?
It’s a shame to see Trump dragging heretofore serious intellectuals down to his level. This quest to find and apply dead law is a fool’s errand, and the recent op-eds are sloppy at worst and futile at best.
Certainly it’s possible to construct a plausible, nuanced view of what the founding generation might have thought. Two former heads of the Office of the Solicitor General—Neal Katyal, who served under Obama, and Paul Clement, under George W. Bush—do that in a recent post on Harvard Law Review Forum. They argue that “the Constitution is refreshingly clear on these eligibility issues.” They conclude that “the phrase ‘natural born Citizen’ in the Constitution encompasses all such citizens from birth.” Michael Ramsey of the University of San Diego, a careful scholar and a leading light of the serious “originalist” movement, argues in a recent paper that “[t]he proof . . . is much more difficult than conventional wisdom supposes.” But, he, too, concludes that “the best reading of the original meaning of the eligibility clause is that any person defined as a citizen at birth by the Constitution or a statute is eligible to the presidency.”