So in Part I, we dealt with common law countries vs civil law countries and I suggested that it's not an on/off or black/white proposition; a country can be partly this and partly that. Moving on:
Another Mistake (#2), which I think Einar Hauge makes: trying to analyze the phrase ‘natural born citizen’ one word at a time. But if the term is idiomatic under common law, you can’t do that. If the term is a UNIT of expression, you can’t find it’s meaning by parsing out each word’s meaning. And he makes no effort to show us whether common law does or does not treat it as a unitary concept. But Amar makes the same mistake, from a different direction:
For starters, put aside the word "natural." Ask yourself whether Cruz is a "born Citizen." In other words, was he a citizen on the day he was born?...So the question is, was Ted Cruz born a citizen? ... in effect, the Constitution says that a president must be a "birth-born citizen."
[I think we will see that this is not that far off from assuming what you need to prove].
Mistake #3: Saying that ‘natural’ is a natural language modifier in ‘natural born citizen’, and that refers primarily to ‘being born in a certain place / country’. Not true. Or, at least, that’s not the whole truth, and presenting it as if it were the whole truth is as misleading as a plain falsehood. The word ‘natural’, like ‘nation’, has its root in ‘natus’, or ‘birth’, and by long tradition a person receives their ‘belonging to’ a NATION through being born of parents who belong to that nation. It is natural to belong to your parents, and it is through your parents that you share a common blood and ancestry ties with a nation. ‘Ties of blood’ is an analogue for the notion: you receive your nationality physically. Nations are DEFINED in terms of being descended from ‘the same ancestry’. Deriving from X stock refers to bones and blood, and birth to PARENTS of that stock. So, if ‘natural’ is to be taken as a word with its standard-language meaning to modify the rest of the expression, (rather than an idiomatic or term of art meaning), natural born citizen ought to mean ‘receiving citizenship through being born into the nation by being born to parents who are of the nation, sharing the same blood, the same stock, the same roots.‘ That’s what it ought to mean, first and foremost. It is not a matter of choice either for the child or for the nation: it is an automatic reality of origin and not a matter of consent.
In addition, ties of blood are assumed to provide a person with deep-seated loyalties. ‘Blood is thicker than water’ implies that you won’t harm ‘your own’, you will be loyal and faithful to your people. This loyalty was always an important element of nationhood. It still is important, even if some people have stopped giving lip service to it: it is still required as a step in being granted citizenship that you swear allegiance to the US. You cannot have your highest political loyalty to 2 different nations, and this is one reason the US does not officially recognize dual citizenship.
PLACE of birth is, in principle, a derivative characteristic, a good indicator of ancestry and blood and ties of loyalty. But even back to Roman times, it wasn’t the sole determinant of nationality. Paul of Tarsus was a citizen of Rome by birth (not by purchase), (see Acts 22:28) but certainly not by being born in the ‘home territory’ of Romans. Before the modern age, moving to a new country was difficult, dangerous, and unusual, and place of birth was a very good indicator of ancestry and blood and ties of loyalty. But even before today there were limits to that. Epithets and secondary names often tell the story of a person’s ancestry as being “different from us”: In England, “gypsy” has long been a derogatory term that regards ancestry from elsewhere, even if the person’s forbears have been in England for 300 years. That's a long time to keep saying "you're not English".
Which inherently leaves the troublesome matter of what to do with a child born of 2 different nations – born of parents deriving their stock from 2 different peoples. One answer, historically, is that the child is a fish out of water: or neither fish nor fowl. They are tainted by being born ‘of that foreigner’ (and you can mentally add ‘scum’, for if it wasn’t said out loud, it was meant). Many peoples have a LOT more care for racial and ethnic integrity than we Americans do, and to them mixing ‘races’ (i.e. mixing from distinct source peoples) is just a bad idea. They don’t want to have their ethnos ‘diluted’, their customs and blood bastardized. (Think for a moment what that word implies and consider it with respect to a child of a couple from different nations: neither nation wants to accept the child as their own – and a disclaimed child with no acknowledged legal father is a bastard.)
America, though, nearly by definition is not that way. America as a partly European development does not have a single root stock or blood to which it can point as ‘pure’ American the way Italians and Germans and Irish and Chinese can. Those of American Indian stock (who ought to have the best claim to ‘pure’ if ‘natural born’ were simply based on PLACE) in practice are less ‘American’ than many others, and have always been treated somewhat as ‘a nation apart’ [and this will be seen below in law as well]. Anyone born to two parents who were born here, and who is mentally assimilated as being American by embracing (a) the English language, (b) respect for the ‘rule of law’ of our federal / state system springing out of a Judeo-Christian roots, (c) the ‘national ethos’ that celebrates ordered liberty, (d) thinks the America polity being designed / constructed by reasoned forethought instead of pure accident is a mark of distinction to be proud of, and all the rest of the mental catalog of how Americans think (including, not least, _loyalty_ to America), and having received all this from mother’s milk, is as American as anyone can ask for. That they may be, racially, of pure-blooded French stock, is simply irrelevant. To America, the historical racial background of a child three and four generations back is NOT the deciding factor the way it is to many other nations, precisely because from the beginning in America that historical set of ties was not the overwhelming factor it was in Europe. Even by 1787, ‘being American’, it was more a matter of being raised from _earliest_childhood_ into the mores and ethos of (and loyalty to) America than being born of a long ancestral line of Americans. This is a real difference for America as compared to many other nations.
As a result, it is impossible for the difficult situation of a child born elsewhere of American parents, or of a child of parents of 2 different nationalities, to be resolved as ‘in’ or ‘out’ of our national pool, except by something more than a custom that reflects only location at birth. That custom does not say enough for these troublesome categories. And according to Blackstone, where custom does not settle a matter, statutory law should settle it. So, common law nation or not, there will be no clear, definitive answer to whether such a child ought to be considered American without considering more than just place of birth, and we should not expect to see common law that addresses only location of birth to be a sufficient law for these cases. And if common law does try to ‘settle’ the matter that way (by birth only), then it is bad law just for that reason. Hence (Mistake # 4) I say that arguments relying on claims that common law ‘settles’ the matter by place of birth and nothing more are bad arguments.
Here’s another problem (but not a ‘mistake’ as such): The construction of the word ‘naturalization’ to describe the result of ‘becoming a citizen’ is, perhaps, the absolute worst coinage of a word that I can remember. If ‘natus’ is birth, and ‘nation’ refers to a people sharing a common ancestry, ‘natural’ in ordinary language can only mean ‘deriving one’s nationhood in the ordinary way, by birth and blood and ancestry’. It is impossible to CREATE the condition of ‘deriving one’s nationhood in the ordinary way, by blood’ through a series of steps and actions taken after birth. You can’t go back into the womb and then be born of different parents. Becoming a citizen after the fact by conscious effort should be called something like ‘artificialization’, for it is an artificial construct of ‘belonging’ to the nation this way, not a ‘natural’ belonging. A person who was Japanese and who _becomes_ an American has a new persona put on him by conscious choice (at the very least, requiring the conscious choice to sever loyalty to a former nation and place it in the US), with an artificial grant of positive consent by the receiving people.
You can’t go back and re-arrange your earliest childhood formation to make the very (automatic) patterns of your thought those of a different people. You can learn the way a people thinks, and you can embrace it, and eventually have it become ‘second nature’ to you by that learning process, but doing so can never utterly displace the original version of how you thought, not absolutely. The layer learned will always be a layer resting on the original mental framework (just as learning a second language as an adult can never utterly displace the mental framework received with your ‘native’ tongue). So, even for America, which doesn’t care as much about blood as other nations, and cares more about mores and ethos and ‘the American way’, it is still a positive grant of permission to grant citizenship to a person who had to LEARN the American way by conscious effort, to a person who did not think that way originally and for whom thinking that way can never be more than second nature. There will rarely if ever be a person who, as an adult, came to be American in thought, mores and ethos, whose American mental framework is ‘just as’ American as a child who learned it from his mother’s milk, so being credited as a member of the nation, for one who learned it as an adult, isn’t ‘natural’ if we want to use the natural (ordinary) meaning of the term, it is artificial, something like a legal fiction. What we ought to have, to be clear, is ‘natural’ citizenship that obtains in the natural way, and ‘artificial’ or ‘granted’ citizenship that is constructed not in the ordinary way but as a pseudo-natural replacement for natural citizenship. Receiving citizenship as an adult ought not be called ‘naturalization’ but ‘granted citizenship’, (for a child born here to American parents isn’t granted citizenship by a positive grant of the government, they ‘have it naturally’ without such an act).
If the language were clearer, it would then be easier to distinguish, in law, between a person who artificially has taken on the persona of US citizenship after first being a citizen of another nation, and one who has it naturally. For obviously there is a difference between noting that a person has come to be ‘like an American’ in word and thought through the artificial operation of a conscious process of change, and a acknowledging that a person ‘comes by it naturally’ because he had it from earliest roots, even prior to memory. The difference: That character formed by ‘second nature’ is almost always incomplete compared to what is made so by nature: the habits that form a characteristic as second nature will always be subject to mistakes and displacement and failures that wouldn’t attend having the attribute by nature. The former may receive his citizenship through a special grant, a favor of the granting nation in effect overlooking the fact that this generated persona is ‘second nature’ rather than natural (i.e. first nature). A person who has it from earliest roots doesn’t need to have his citizenship ‘granted’ to him by a special favor overlooking possible deficiencies in his make-up, he has it naturally: his citizenship can be recognized by the government, but it is not granted TO him by that government.
So what about a child born to American parent(s) elsewhere? Should he automatically have citizenship ‘from birth’ or not?
Ideally, in my estimation, the answer should be bifurcated. Unlike nationhood in ancestry-centric nations that care ultimately more about blood than ethos, America cares more about ethos and allegiance than ancestral details. Consequently, the ideal answer would be that America ‘recognizes’ the naturally existing citizenship of a child born of American parentage, if by that parentage they obviously and naturally received from their earliest roots what an American child receives by being born here: the language, the mores, the ethos, and their highest national loyalty to America. By recognizing such a child is American, we would not be ‘granting’ citizenship, we would be acknowledging the natural state of affairs – and the child would be a ‘natural born citizen’.
How might a law do this? I am going by the seat of my pants here, but if a child is born to American parents overseas, and is brought back to the US and lives here more or less continuously from age 4 onwards, (which is about the age of earliest clear memories), that will do it. We can presume that if the American parents always intended to come back, then they were certainly teaching the child English and teaching American ways, and so the language and mores of America would have been the backdrop of earliest memory, (and stretching even earlier than the child’s explicit memory). If a child is born to an American parent overseas and is not brought back to live in the US until after, say, age 12, I would submit that this is per se a reason NOT to call his citizenship ‘natural’ because (a) it is not ‘natural’ for a parent to choose to live continuously away from their home country for so long, and so we should not presumptively think the child was raised ‘to be American’ in outlook, sensibilities, and loyalty; and (b) the child will not be raised surrounded by the formative experiences of life in the US to ‘naturally’ make his mental framework grok all things American. (Both of these difficulties will be short-circuited in favor of children born of US diplomats and military.) Obviously, between 4 and 12 there is a very wide gray area of ‘sort of this and sort of that’, for which no simple and easy answer can be stated. (And perhaps the age of 12 is not quite the right cut-off, maybe it should be earlier, it’s not going to be an easily specified age as if there is a ‘usual’ point at which not being physically in the US makes ‘all the difference’.) Note, however, that I am specifically not saying that a child born overseas to American parents, raised by them ‘as American’, and brought back here to live primarily here by age 4 is ‘made American’ by his being raised so and being moved back here. I am suggesting that a child born to American parents abroad who always planned to come back and live here and always planned to raise their child ‘as American’ (and proved that intention by subsequent actions) simply IS American in the natural order by receiving his nationality through his parentage.
Rules like ‘lived primarily in the US from age 4’ are not easy to work, especially if you are looking to custom alone. For custom usually is not so precise. (It’s not impossible under statutory law: lots of immigration and residency laws DO have constructions like this, so it is perhaps difficult but not impossible.) So it is conceivable that Congress would not want a messy law like that, and instead would just make a simple, clear cut ‘born of an American parent’ and declare that we are going to accept the status of any child born of an American to be a citizen ‘automatically’.
Here's an objection: Even if a law provided as suggested above, it might be written so as to declare that ‘automatically recognized’ citizenship, but might not specify that this is the same thing as ‘natural born citizenship’ as that expression ought to mean. In partial answer, I don’t know exactly what US law says, but I would think then that if the law provides that such a child ‘automatically’ is a citizen, not ‘made’ a citizen by a process of granting what does not exist naturally, then this stands for the proposition that the child is NOT set apart under the law from those born here, who are naturally citizens through receiving it naturally from their parentage. In effect, if the law declares that ‘we aren’t going to get into the weeds of actually sorting out whether a child born overseas to an American parent actually was raised from birth to think of themselves as American, we are going to assume that they were and consider that they were for purposes of law, then that would be intended to mean “citizen for all purposes and not merely citizen for all purposes except presidency”. That is to say, for purposes of law, we would consider such a person a citizen ‘by nature’, not ‘made so by government acceptance’.
But the question here is not merely what the expression ought to mean, the question is what does the expression ACTUALLY means in the US. If Congress has chosen to enact law that defines ‘natural born citizen’ as ‘all those people who meet any of categories (a) through (f)’, and if being born outside the US to an American parent is one of those, then for purposes of law, such a person is ‘natural born citizen’ and that’s the end of it. (US being a common law country or not.) Or, if Congress chooses to pass a law that says "only persons satisfying one of (a) through (f) are ‘natural born citizens", and being born outside the US is not one of those 6 categories, then that too would settle it….even if we simply declare that the US is a ‘common law legal system’, because even in a common law country actual statutes supercede customary law. [Or, in the absence of a statute, if common law is clear and explicit, and speaks to the matter, that would settle it. I will get to this below.]
But apparently no modern statute that Congress has passed defines ‘natural born citizen’. That’s the crux of the problem. Congress has passed ‘naturalization’ laws (which declare how a person born not a citizen can be made a citizen), and has passed other laws that identify citizenship, but without calling such ‘natural born citizenship’.
This is current law .
§1401. Nationals and citizens of United States at birth The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;
(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;
(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and
(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.
[I don’t know for sure if 8 US Code 1401(g) cited here was different when Cruz was born, but the annotations of prior changes don’t suggest it. And I have not run across an article saying it was different in 1970.]
The rest of the law seems to deal with naturalization(tm), I guess. Nothing else creates or recognizes or distinguishes any other categories of citizen or reasons by which a person is a citizen. The law does not distinguish between any of the categories (a) through (h) as under different categories or ‘kinds’ of citizenship. They are all ‘citizens of the United States at birth’. The only way law distinguishes categories is between ‘citizen at birth’ from ‘citizenship made so under the naturalization laws’.
So, I don’t think the objection stated above holds much significance. We have a separate law to handle ‘naturalization’(tm). In the US, this kind of citizenship is citizenship for almost all purposes under law, except one: it doesn’t imply ‘natural born citizen’ for presidency. (However, in other countries there might be more matters carved out for different treatment between ‘natural’ and ‘made’ citizens, and I would be willing to countenance more categories here in the US if we could discuss such matters rationally.) So, if we admit that citizens made so through the naturalization(tm) process are ‘different’ and need to be set apart as not ‘natural born citizens’, do we think that the child born overseas to an American parent and brought to the same state of thinking American as a child born here, is - for citizenship purposes - more like a child born here, or more like a person made citizen through naturalization(tm)? And the answer is obvious: if there’s ONLY those two categories, it’s much more like the former.
According to various sources, the only US law to ever use the term ‘natural born citizen’ is the Naturalization Act of 1790. And that is:
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.
Being made so nearly after the Constitution was written, I think it is very, very likely intending the same meaning for the term as what was meant when it was written into the Constitution.
Stay tuned for more revelations and Mistakes 5 through 9. But feel free to attack or defend this much.