Those discussing the phrase “natural born citizen” in the debate if McCain qualified to run for president under that phrase haven’t investigated to find what that phrase meant to the founders of the United States..

Law, like theological questions, uses phrases that those without experience may reinterpret literally to bolster their own beliefs or agendas. Hence the right wing sites that hyperventillate that a man born of military parents on a military base on US territory isn’t “natural born”..

But this brings up the question: Why did the founders use the phrase “Natural born citizen” rather than the phrase “a person born in the United States”..

The 14th amendment did extend citizenship to those born or naturalized withint the United States, to emphasize that blacks and Native Americans were indeed citizens, but the part of the constitution that refers to the president uses the phrase “natural born citizen”.

Luckily, the law professors at the Volokh Conspiracy blog have done our homework for us, and dug out the 18th century legal papers that define that word under British law.

If the drafters of the Constitution had wanted to require that presidents be born in the United States, they could have done so. Instead, they invoked the then-standard idea of natural citizenship as reflecting natural allegiance to the king or the state.

Standard 18th century dictionaries and commentaries couldn’t have been clearer on this point. For example, Giles Jacob in The New Law-Dictionary (1743) and The Common Law Common-plac’d (1733) made clear who was an alien and who was a “natural born subject”:

The Children of Ambassadors in a foreign Country, are natural born Subjects, and not Aliens. Id. at 22 (Eighteenth Century Collections Online)

They then go on to post a long discussion from Blackstone’s Commenteries, a book quite influential and used by many lawyers in early America to help them define what the law meant:

this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the embassador. ..

Blackstone explains why in much detail, and then goes on to explain why the law had evolved to include even children of merchants living overseas.
Professor Lindgren then wryly notes:

According to even the most technical meaning of “natural born” citizen in the 1780s, John McCain is a natural born citizen of the United States, but George Washington and Thomas Jefferson may not have been (since they were born before 1776), though they would have been generally treated as such at the time.

If the right wing extremists want to continue pursuing the matter, they should be warned that two prominent Senators, McCaskill and Obama, have announced they plan to introduce legislation that allows all children born of military personnel stationed overseas to be included in the definition of “natural born”.

“Those who serve and sacrifice for their country, like John McCain and his father, deserve every honor and privilege that our nation can possibly provide, and that includes the ability to run for the highest office in the land,” Obama said in a statement.

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Nancy Reyes is a retired physician living in the Philippines. Her website is Finest Kind Clinic and Fishmarket, and she crossposted this on Podkayne’s blog. 

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