This post consolidates and extends earlier comments I (here and here) and others (especially Eugene Volokh here) have made about Senator Kamala Harris’ eligibility to be President (and derivatively her eligibility to be Vice President). To put the conclusion up front, I think there should be no doubt that she is eligible, but reaching that conclusion requires some examination of originalist sources.
The eligibility clause (Art. II, Sec. 1, para. 5) states that only a “natural born citizen” is eligible to be President, without any further relevant definitions. (The Twelfth Amendment adds that the Vice President must be eligible to be President). It’s common ground that persons born in the United States to U.S. citizen parents are natural born citizens, while persons born outside the United States to non-citizen parents are not. There are three intermediate contested categories: (a) persons born outside the United States with a U.S. citizen parent (call this the “Ted Cruz category”); (b) persons born in the United States to non-citizen permanent residents (the “Marco Rubio category”); and (c) persons born in the United States to non-citizen temporary visitors (the “Kamala Harris category,” at least by the assumptions of the current debate).
In considering the original meaning of the phase “natural born,” the most obvious source is English law, which traditionally and routinely used the phrase “natural born subject.” The founding generation in America undoubtedly knew of the English phrase through Blackstone’s Commentaries on the Law of England (1765) – the most widely circulated legal treatise in the early United States. Blackstone wrote (pp. 354-55):
The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligence, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.
Blackstone further explained (p. 357): “[n]atural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection … Natural allegiance is therefore a debt of gratitude.” Thus (pp. 361-62): “The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”
As a later U.S. case concluded, “It is an indisputable proposition” that “[b]y the common law, all persons born within the ligence of the crown of England, were natural born subjects, without reference to the status or condition of their parents.” (Lynch v. Clarke, 1 Sand. Ch. 583, 639 (N.Y. Ch. 1844)). There were narrow exceptions to this rule for persons who did not owe even temporary allegiance to the territorial monarch. But the extraordinary circumstances of these exceptions confirmed the breadth of the general rule: birth within English territory made one a “natural born” English subject. I described the rule in a prior article:
In sum, the traditional English common law was that a “natural born” subject was only one born within the territory of the king, with narrow exceptions for the children of ambassadors and other ministers, and of invading armies. The touchstone was birth under the protection of the sovereign, which the common law understood to arise (except in unusual circumstances) from presence in the monarch’s dominions.
The phrase “natural born” thus had a clear eighteenth-century legal meaning, at least in connection with birth within sovereign territory. Though there’s no direct evidence that the Constitution’s framers adopted this meaning, it’s a compelling inference. English law was the source of the phrase, and anyone reading Blackstone (as the Framers did) knew that.
Applied to the modern contested categories, the conclusions are clear with respect to persons born in the United States of non-citizen permanent residents (the Marco Rubio category) and persons born in the United States of non-citizen visitors (the Kamala Harris category). Both categories were indisputably “natural born” within the English law definition because they were born in sovereign territory under the protection of the sovereign. As treatise-writer William Rawle wrote in 1829 (A View of the Constitution of the United States of America, p. 86):
Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution.
(The “Ted Cruz” category – persons born to a U.S. citizen parent outside the United States – is more difficult, as these persons would not be “natural born” under the tradition English common law. I argue here that this category is also “natural born” under the Constitution’s original meaning, though I concede it is a more challenging proof.)
The principal counterargument from the eighteenth century is that England was an outlier and in civil law countries citizenship did not work this way. Most European countries and European writers treated a child’s citizenship or subjectship as descending from the parents (usually the father), not as arising from birth in sovereign territory. Thus the child of a French subject was a French subject irrespective of the place of birth, and a child born in France to an alien father was not a French subject. The founding generation in America surely knew this too – it is described, for example, in the treatise The Law of Nations by Swiss writer Emer de Vattel (published in 1758 and widely circulated in America). Of course, the Constitution’s framers could have adopted this rule. But if that was what was intended, they wouldn’t have used the phrase “natural born” citizen, because “natural born” was so clearly associated with the territorial rule of English law. And in any event, as the quote from Rawle above indicates, U.S. post-ratification practice and commentary followed the English rule, not the European rule.
In a provocative recent essay, Chapman law professor (and former Dean) John Eastman offers a different counterargument based on the first sentence of the Fourteenth Amendment, which states that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Dean Eastman’s argument is twofold: (1) this provision defines, or at least illuminates, who are “natural born citizens” under the eligibility clause; and (2) children of temporary visitors are not included because they are not born “subject to the jurisdiction” of the United States.
In my view both steps in this argument are wrong. As to the first, the Fourteenth Amendment does not define who is natural born. The Amendment is a floor, providing a constitutional right to citizenship for the class of people it describes (the main target being newly freed slaves and other persons of African descent, whose citizenship was unsettled as a result of the Dred Scott case). Nothing prevents Congress from making additional classes of people citizens, as Congress has done since 1790 for persons born abroad to U.S. citizen parents. And nothing in the Fourteenth Amendment prevents these persons from being “natural born” citizens, if they are included in the original meaning of “natural born.” And indeed that is exactly what I argued with respect to Senator Cruz: “natural born citizen” means born a citizen (whether by operation of the Constitution, a statute or common law). So even if Senator Harris isn’t a constitutional citizen under the Fourteenth Amendment’s original meaning, she still was born a citizen and thus is a natural born citizen.
But in any event, Dean Eastman is wrong on the second step. He says that children of temporary visitors are not born “subject to the jurisdiction” of the United States because they are subject to the jurisdiction of the home country of the parents. But (with narrow inapplicable exceptions) all persons within the territory of the United States are subject to its jurisdiction. That’s the foundation of the international law of sovereignty, as true today as it was in the nineteenth century when the Fourteenth Amendment was ratified. The 1865 version of Webster’s Dictionary defined “jurisdiction” in this sense as “the power or right of exercising authority,” and no one doubted that the sovereign had authority over essentially everyone and everything within its territory. As Chief Justice Marshall put it in The Schooner Exchange (11 U.S. 116, 136 (1812)), specifically addressing temporary visitors:
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. … When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.
Thus temporary visitors and their children were “subject to” (“amenable to” in Marshall’s phrase) U.S. jurisdiction while within U.S. territory – though they might also be subject to the jurisdiction of another sovereign on the basis of the parents’ citizenship (depending on that sovereign’s citizenship law). And obviously that’s in accord with the common sense understanding of anyone who’s traveled abroad – visitors are subject to local law, though they are also subject to their home country law.
Dean Eastman says that the Fourteenth Amendment requires birth subject to the exclusive jurisdiction of the United States. But that’s simply not what it says. And (as noted above) that wasn’t the rule before the Fourteenth Amendment, when the U.S common law of citizenship followed the English territorial rule. There’s no evidence that people at the time of enactment thought the Amendment would depart from the existing common law rule as to the U.S.-born children of immigrants. The point of the “subject to the jurisdiction” language was to exclude the children of diplomats and tribal Native Americans, who weren’t subject to U.S. jurisdiction even within the United States (the former because of diplomatic immunity and the latter because by treaties with the United States the tribes governed their own internal affairs). Indeed, a colloquy in the Senate debates over the Amendment indicated that the Senators understood it would give citizenship to the U.S.-born children of non-citizen Chinese immigrants on the West Coast – a point later confirmed by the Supreme Court in United States v. Wong Kim Ark in 1898.
Dean Eastman attempts to avoid the effect of Wong Kim Ark by distinguishing between children of permanent residents (as in Wong Kim Ark) and children of temporary visitors – that is, between the Marco Rubio category and the Kamala Harris category. But nothing in the Amendment supports this distinction. Both categories are born “subject to the jurisdiction” of the United States to the same extent: they are born under U.S. sovereign authority. Neither category is born subject to the exclusive jurisdiction of the United States – but the Amendment doesn’t require exclusive U.S. jurisdiction for citizenship.
In sum, the eligibility clause’s phrase “natural born citizen” adopts (at minimum) the meaning of “natural born” from eighteenth-century English law: born within sovereign territory (with narrow exceptions not applicable to current controversies). The English rule indisputably applied to children of alien parents (including temporary visitors), and post-ratification evidence indicates that is how it was understood to operate in the United States. The Fourteenth Amendment didn’t alter that rule, first because the Amendment addressed a different issue, and second because in any event the Amendment confirmed that persons born in U.S. territory are U.S. citizens at birth (with exceptions for persons like diplomats who aren’t under U.S. authority even within U.S. territory). Thus because Senator Harris was born in the United States while her parents were (albeit perhaps temporarily) subject to U.S. authority, she is a natural born citizen under the original meaning of the eligibility clause.
NOTE: This article was originally posted 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.
- A Textualist/Originalist Case Against the Power to Impeach and Try Former Presidents - January 18, 2021
- The Constitution, General Austin, and the Seven-Year Rule - December 17, 2020
- Can the Vice President Break a Tie on Appointments? - September 25, 2020