Toward Natural Born Derivative Citizenship

Senator Ted Cruz’s campaign for the Republican presidential nomination again raised the question whether persons who receive citizenship at birth to American parents abroad are natural born and eligible to the presidency. This article uses Supreme Court decisions and previously overlooked primary source material from the Founders, the First Congress and English and British law to show that they are not natural born under the doctrinal or historical meaning of the term. The relevant constitutional distinction is between citizenship acquired by birth or by naturalization, not at birth or afterward.

It argues further that a living constitutional theory cannot justifiably interpret the term more broadly because derivative citizenship statutes have long discriminated on grounds including race, gender, sexual orientation, and marital and socioeconomic status. The Supreme Court upholds them even though they would be unacceptable if applied to citizens because they merely discriminate against aliens. Moreover, many who assert presidential eligibility or other constitutional privilege for children born to American parents abroad intend to favor traditionally dominant groups or rely on political theories of bloodline transmission of national character that the Supreme Court used to justify its infamous decision in Dred Scott v. Sandford. No justifiable living interpretation can incorporate such discrimination or discredited political theories in qualifications for the highest office in the land.

The article examines the meaning of the term “natural born” in the broader context of similar discrimination in English and British law from which American law developed. It acknowledges the difficulty of reconciling centuries of derivative nationality law and practice with our highest constitutional ideals of equal protection of the law. It concludes by identifying threshold requirements for and a possible approach to developing a justifiable living constitutional interpretation of natural born derivative citizenship.