Citizenship Clause Research Articles

Prvý oddíl čtrnáctého dodatku Ústavy Spojených států: původní význam a výklad

The paper analyzes the first section of the Fourteenth Amendment to the United States Constitution and its four key clauses – the citizenship clause, the priviliges or immunities clause, the due process clause and the equal protection clause. Special attention is paid to the debates of the members of the 39th Congress which offer an insight into the original understanding of terms and phrases used in the text of the Amendment and that make possible to understand the context of its origin. The paper tries to describe the most likely original meaning of the individual clauses of the first section and analyze their possible various interpretations that often stand in direct opposition. While it can be reasonably assumed that during the times of the passing and ratification of the Amendment its objective was fairly limited, reflecting the post-war political reality in the United States, during the decades following ratification the Amendment started to be applied to issues that until then had been completely in the hands of the legislatures and depending on the democratic discussion on both federal and state level. The authors quoted in this paper can not be assigned to just one method of interpretation and legal philosophy, to the contrary, the paper aims to confront different views on the Amendment and its original meaning and based on it reach a conclusion; therefore both the view seeing the meaning of the Amendment as limited, held for example by professors Charles Fairman and Raoul Berger, and the perspective that sees its objectives as broader, represented for example by professors Michael Kent Curtis and Randy Barnett, are mentioned.

Protecting Minorities from De Facto Statelessness: Birthright Citizenship in the United States

Birthright citizenship is the subject of intense political debate in the United States because of its connection to the debate over unauthorised immigration and the inclusion of national minorities. Similar debates have taken place in other common law countries, leading to the restriction of jus soli birthright citizenship in the United Kingdom, Australia, New Zealand and Ireland. The Supreme Court of the United States and United States Department of State’s interpretation of the Citizenship Clause in § 1 of the Fourteenth Amendment ensures that all ‘persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States’, including the children of unauthorised immigrants. This article argues that the rule of jus soli birthright citizenship in the United States is rooted in an older understanding of the birthright of native-born British subjects, and later, American citizens, to enjoy the birthright of protections and an ever-expanding set of rights based on where they were born, regardless of the status of their parents. Stated in a way that included the children of slaves and immigrants as citizens based on their birthplace alone, jus soli birthright citizenship in the United States remains a powerful tool of inclusion for marginalised minority groups.

The State Citizenship Clause

The State Citizenship Clause

Čtrnáctý dodatek Ústavy USA a jeho výklad z pohledu hlavních interpretačních metod

The paper analyzes the Fourteenth Amendment to the United States Constitution, especially its first section and the clauses contained in it: the citizenship clause, the privileges or immunities clause, the due process clause and the equal protection clause and the historically variable interpretation of those by the Supreme Court, the decisions of which often accounted for fundamental changes in the perception of the provisions of the Fourteenth Amendment. Quite frequently, it was the Supreme Court that stood behind the significant social changes throughout history, whether in the area of racial segregation that still lasted for many years in the United States even after the end of the civil war, or later in the area of the right to privacy. The paper also deals with the approach of the dominant methods of interpretation to the Fourteenth Amendment, it compares the different approaches and the resulting interpretative conclusions. A special attention is dedicated to the contradictory interpretations of the originalist theory and the Living Constitution theory, the conflict between the advocates of these two lasting until today and still constituting an important part of the constitutional law debate in the United States.

Child and Adolescent Forensic Psychiatry Examination and Analysis of U.S. Citizen Children with Illegal Immigrant Parents Facing Deportation.

Although the citizenship clause of the fourteenth amendment guarantees citizenship to persons born in the United States, the 1996 Immigration Act does not allow illegal immigrant parents to avoid deportation unless such deportation would cause extreme and exceptional hardship to a U.S. citizen relative. This paper reviews the potential adverse effects of such deportation on a child. It presents 12 cases where child and adolescent forensic psychiatric evaluations of U.S. citizen children supported their immigrant parents' petitions for legal resident status. Parent-child attachment, as well as the child's educational status, language proficiencies, acculturation to U.S. culture, and psychiatric distress at the potential deportation, are the factors most helpful in elucidating a child's reaction to this threatened deportation. During the child and adolescent psychiatry evaluations, the parents were interviewed, school records were reviewed and, where appropriate, pediatric records were considered. All the children were examined alone and then as a family unit with their parents using standard DSM-IV-TR diagnostic criteria [1]. Firstly, considering their clinical diagnoses, a clinical prognosis was made for the possibility if the child were to be forced to go to their parents' country of origin with their deported illegal immigrant parent(s). Secondly, each case was examined and analyzed individually to determine the clinical prognosis of the U.S. citizen child if they were to stay in the United States while the illegal immigrant parent(s) was forced to leave. In all of the 12 cases, there was already pre-existing anxiety in the children secondary to the fear of a negative outcome for the parents in the immigration legal cases. In all of the 12 cases it was also determined that the prognosis for the child's adjustment to being without their parent but remaining in the US would have produced a significant exacerbation of the psychopathology already seen. Furthermore, in all of the 12 cases, were the children to be relocated to their parental culture, unfamiliar to the child's American culture, again, the prognosis was made that a significant exacerbation of psychopathology would occur. On the basis of the findings of the child and adolescent psychiatric evaluations and analyses presented to the court, all of the illegal immigrant parents were permitted to receive permanent resident status.

BgHSt 20, 22 und die Neubürger-Klausel des deutschen Strafanwendungsrechts – ein deutsch-polnischer Fall schreibt Rechtsgeschichte bis heute

In its judgment of the 4th September 1964 the German Federal Court of Justice had to deal with a German-Polish case of murder. The accused persons were members of the German minority in Poland and lived in the Western part of Poland, when German troops occupied that territory in the autumn of 1939. Short after the invasion they killed the members of a Jewish family living in the same territory. Both, the perpetrators as well as the victims were Polish nationals, when the crime was committed. The perpetrators have got the German nationality in the following. It is not clear, whether they have been naturalized by German authorities during WW II, but if not, they were seen as German nationals with the Getting-into-Force of the German Basic Law (Constitution), because they were refugees from Poland to Germany. Therefore, Article 116 § 1 Basic Law naturalized them as German nationals. For the criminal case it was crucial whether the later naturalization can give the German Justice system jurisdiction over a case which happened before the perpetrator has reached the German nationality, as it was (and still is) stated in section 4 (resp. today section 7) of the German Criminal Code. The paper should deal with the implications of this so-called "New Citizenship Clause" and with the circumstances of the case and the following cases at Western German Courts against German people for committing murder in the occupied Polish territories during WWII. Shortly after the named case, the Auschwitz trial started in Frankfurt. On that background, the paper reflects on the situation between West and East Germany as well.

Civic Longing: The Speculative Origins of U.S. Citizenship by Carrie Hyde

Reviewed by: Civic Longing: The Speculative Origins of U.S. Citizenship by Carrie Hyde Rebecca E. Zietlow (bio) Civic Longing: The Speculative Origins of U.S. Citizenship. By Carrie Hyde. (Cambridge, Mass.: Harvard University Press, 2018. Pp. 308. Cloth, $45.00.) What role does the imagination play at a time of national crisis? That question is at the heart of Carrie Hyde's recent book, Civic Longing: The Speculative Origins of U.S. Citizenship. In it, Hyde discusses the political and cultural history of citizenship in the United States before the Civil War. Disputes over the meaning of citizenship were commonplace in the antebellum era, and citizenship played a central role in the legal reforms of the Reconstruction era. While historians and legal scholars have thus explored legal precedents in depth to understand the meaning of citizenship in the Reconstruction era, Hyde, an English professor, brings a unique perspective to this discussion by exploring the cultural significance of citizenship outside the law. Instead of political debates and legal rulings, Hyde examines religious texts, essays, and works of fiction to illustrate alternative visions of citizenship that enhanced the debate over some of the most important and divisive issues in the antebellum era. The American Revolution transformed subjects into citizens, but the original United States Constitution neither defined citizenship nor delineated the rights enjoyed by citizens. In the political realm, antislavery activists often invoked citizenship as a basis of rights for free blacks. The U.S. Supreme Court rejected those arguments in the infamous case of Dred Scott v. Sandford (1857), holding that blacks could never be citizens. After the Civil War, the Fourteenth Amendment's citizenship clause overturned the Dred Scott ruling and established birthright citizenship. But what did it mean to be a U.S. citizen in nineteenth-century America? A wave of immigration during this era complicated this inquiry, as did the uncertain status of American Indians, who were native to the continent but belonged to tribes that considered themselves as separate sovereign nations. Belonging, or the failure to belong, was central to the debate over slavery, secession, and the rights established by the Fourteenth Amendment. Hyde shows how literature created space for debate over the meaning of belonging. In the time of the Second Great Awakening, religion was bound to influence the debate over slavery. Hyde argues that Christians were influenced by new translations of Paul's letter to the Philippians, which referred to "citizens of heaven." Some interpreted this language as identifying heaven, rather than the nation, "as the supreme home to which one owed allegiance" (46). This doctrine arguably provided an excuse for disengagement in the political realm, but Hyde claims that it also provided a forum for [End Page 149] exploring what citizenship could mean in the corporal realm. For example, in her 1856 novel, Dred: A Tale of the Great Dismal Swamp, Harriet Beecher Stowe portrays "an egalitarian image of heavenly citizenship as a counterfactual imperative for a racially inclusive model of political citizenship in the United States" (81). Here Stowe, whom Abraham Lincoln purportedly referred to as "the little woman who started this great war," presented an egalitarian model for what could happen after the war ended slavery. Hyde shows how fiction contributed to another argument raised by abolitionists, the claim that slavery violated natural law. She describes Frederick Douglass's novel The Heroic Slave (1852) as a fictional account of a slave rebellion that took place on a slave ship. Douglass uses the open seas as a metaphor for the state of nature, invoking the natural world as a symbol of liberty and reform. In a famous quotation from the book, Douglass insists, "You cannot write the bloody laws of slavery on those restless billows. The ocean, if not the land, is free" (106). According to Hyde, Douglass links nature and citizenship to formulate the "natural citizen," where freedom is the state of nature. During congressional debates over the Fourteenth Amendment, many of its proponents agreed with Douglass that the rights of citizenship included natural rights. Some of the authors discussed in Civic Longing explored the flip side of citizenship: the ability to relinquish it. For example, in his essay "The Custom...

Constitutions and Citizenship: Lessons for African Countries

Summary Since the colonial period in Africa, ruling elites have manipulated laws regulating citizenship to advance their political and economic interests. The European colonialists used citizenship laws to enhance their ability to maintain control over the colonies and minimize the ability of Africans to fight for independence. Many Africans believed that independence and the establishment of new institutional arrangements would allow them to develop a common national citizenship, one in which all the citizens of each country would have equality before the law and be granted equal opportunity for self-actualization within all parts of the country, regardless of their racial or ethnic affiliation. However, in the post-independence period, incumbent political elites have been acting like their colonial counterparts and have used citizenship laws to get rid of critical and opposing voices by depriving these people of their nationality. In 1996, for example, Zambia’s ruling political party, the Movement for Multi-Party Democracy (MMD), adopted a new constitution, which effectively stripped the country’s independence president, Kenneth Kaunda, of his Zambian citizenship and prevented him from challenging the MMD for leadership of the country. Similarly, in 2000, then president of Côte d’Ivoire, Henri Konan Bédié, changed the constitution and introduced a citizenship clause that effectively disqualified the candidacy of his main opposition, Alassane Ouattara. South Africa’s apartheid regime, on the other hand, introduced a racially-based multilayered citizenship system in which individuals of European origin were placed at the top, enjoying full citizenship rights, and Africans were relegated to the bottom with extremely attenuated citizenship rights. Some African groups were actually forced to lose their South African citizenship. Citizenship is a complex issue and one that citizens of a country must deal with. The paper suggests that in doing so, African countries must not allow citizenship to be defined by race, ethnicity, religion, or other ascriptive traits, but by allegiance or fidelity to a set of values or ideals (e.g., democracy, rule of law, equality before the law) that define the nation.

The U.S. Constitution and Birthright Citizenship in the Unincorporated Territories

This article re-examines the status of of the United States. In the Insular Cases of the early 1900s the U.S. Supreme Court determined that the Constitution did not provide birthright citizenship for persons born in unincorporated territories, which were territories they considered to be under the jurisdiction of but not part of the United States. Instead, persons born in those territories were deemed non-citizen nationals of the U.S. Since then Congress has legislated birthright citizenship for Guam, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands, but not for American Samoa. While arguments have been made that the territories have in fact been incorporated into the United States and therefore the Fourteenth Amendment's citizenship clause, which guarantees citizenship for all persons born in and subject to the jurisdiction of the U.S., applies, I argue from a different perspective. Birthright citizenship does not derive from the Fourteenth Amendment but from the original Constitution. While citizenship is not defined in the Constitution, courts have determined that as a sovereign state, the U.S. had citizens and the rules for citizenship were to be found in English common law regarding subjects. English common law recognizes all persons born under the sovereignty of the state to be English subjects, regardless of whether or not they were born in the realm. As a result, anyone born in any territory under U.S. jurisdiction should be considered a citizen.

Puerto Rico Debt Crisis: Trying to Reconcile Sanchez-Valle with the Puerto Rico Bankruptcy SCOTUS Opinions: Some Preliminary Thoughts

Puerto Rico Debt Crisis: Trying to Reconcile Sanchez-Valle with the Puerto Rico Bankruptcy SCOTUS Opinions: Some Preliminary Thoughts

How to Rid the United States of Anchor Babies

In the Citizenship Clause, “subject to the jurisdiction thereof” excludes a child of an Indian not taxed, excludes a child of a citizen or subject of a foreign government, and excludes a child of a diplomatic or consular officer of a foreign government, from United States citizenship-by-birth.An anchor baby was not born “subject to the jurisdiction” of the United States. Therefore, an anchor baby is not a United States citizen-by-birth.Contrary to the Citizenship Clause, the United States Supreme Court issued a ukase, in the form of an opinion, that a child born in the United States, of legal immigrants to the United States, is a United States citizen-by-birth.Also contrary to the Citizenship Clause, Associate Justice Brennan issued a ukase, snuck by him into a footnote, that a child born in the United States, of illegal aliens, is a United States citizen-by-birth. Ukases, which don’t make no never mind, are to be expected, because the United States Supreme Court is not a court. It is the Supreme Policy Presidium. Supreme, because the “court” declared itself to be superior to the Congress and the Executive. Policy, because judicial opinions are not expositions of constitutional law. They are expressions of an authoring justice’s philosophy. Presidium, a term which is associated with the government of the Soviet Union.Seven action plans are presented. They cover securing the United States border, and kicking out anchor babies, and keeping them out.

Will to love, will to fear: the emotional politics of illegality and citizenship in the campaign against birthright citizenship in the US

Anti-immigration activists argue that the broad inclusivity of the birthright citizenship clause of the 14th Amendment is a national security concern that enables criminalized migrant mothers to give birth to citizens who can later harm the US through violence and resource consumption. Seeing this argument as representative of the problem of inclusivity inherent to citizenship in a liberal democracy, this essay asks how the children of undocumented and temporary migrants are constructed as what Mae Ngai calls ‘alien citizens.’ Drawing from Sara Ahmed's affective economy of emotion, I find that affect and emotion figure prominently in how citizens are made ‘alien.’ Specifically love and fear function as pivot points in the anti-birthright citizenship argument, wherein the ‘real citizen’ is ‘willed’ to love and be loved by the nation and to fear the nation's Others. Moreover, the emphasis on national feelings does not evacuate white supremacy or heteronormativity from its imagination of citizenship, but instead displaces these loci of power into feeling and affect. Thus, this essay claims that the birthright citizenship argument illustrates how national love and fear work in tandem to uphold, naturalize, and expand the racial and sexual exclusions inherent to citizenship in a nation-state.

Foreign in a Domestic Sense: American Samoa and the Last US Nationals

Citizenship is part of the foundation of being American. Yet the United States treats some of its own as second class citizens. Deep in the South Pacific, forgotten amidst the vast ocean and coconuts, is a small series of islands that represent the only U.S. jurisdiction below the Equator. American Samoa remains the last American territory that does not recognize its inhabitants as citizens. For more than a century, American Samoans have fought American wars, pledged allegiance to the American flag, and played a significant amount of American football, yet are categorized as U.S. nationals rather than citizens.Recently, some Samoans lost a suit against the Department of State to declare all those born in American Samoa as U.S citizens under the Fourteenth Amendment’s citizenship clause in the case of Tuaua v. United States. The case resurrected a series of early twentieth century Supreme Court decisions concerning American expansion and the territories known as the Insular Cases. These cases developed a framework for applying parts of the Constitution to territories without fully accepting them as American. As one justice described it, the territories are “foreign to the United States in a domestic sense.”However, the concept of citizenship is not necessarily welcomed by Samoans, even while they remain adamantly pro-American. Despite significant Western influence, they have managed to maintain their cultural institutions dating back thousands of years. They fear that citizenship, and the Constitutional responsibilities that come with it, may erode what is left of their culture. The Insular Cases, once devised to subvert a people, are now seen as the last salvation of a culture.This paper attempts to navigate the Insular Cases and subsequent case law to determine whether citizenship for American Samoans is a fundamental right. In Tuaua, the plaintiffs sought to overturn the Insular Cases, while the court viewed the Insular Cases as a ban on citizenship. However, this paper finds a path to provide citizenship for American Samoans within the Insular Cases’ doctrine that would protect their rights as well as their culture and institutions.

Birthright Citizenship, Undocumented Immigrants and the Slavery Analogy

The current controversy over territorial birthright citizenship in the United States links unauthorized immigration with slavery. Where ever one stands on birthright citizenship for US-born children of undocumented immigrants, everyone recognizes that the controlling legal standard was enunciated in the Fourteenth Amendment’s Citizenship Clause – itself a response to the iconic Dred Scott decision denying that people of African descent were, or could ever be, citizens. The jus soli rule in the U.S. has an earlier common law provenance, but because it was explicitly constitutionalized in the wake of the slavery conflict, the fate and meaning of today’s birthright citizenship controversy in the U. S. is necessarily refracted through the nation’s slavery experience. Certainly, disagreements abound about what exactly the Citizenship Clause has to say about extending citizenship to children born in the US of unauthorized immigrants, but the debates take as given that our current discussions over assignment of territorial birthright citizenship issue from the Fourteenth Amendment, thereby traversing the ground of the nation’s struggle over slavery and its aftermath. This geneology distinguishes the birthright citizenship controversy in the United States from debates on the subject in other national settings. In Ireland, for example – a country which recently eliminated birthright citizenship by constitutional amendment – a history of slavery does not figure as specific horizon or constraint. But other than recognizing the particular path dependency of the debate, what do we take from this fact? What is the significance of this historical sequencing? Are the institutions of slavery relevant to the current birthright citizenship debate in any internal, analytical sense? In other words, is their convergence by way of the Citizenship Clause simply a temporal happenstance which now distracts rather than enlightens, or does the slavery question represent something which – analytically and normatively – properly informs our approach to the citizenship question today? This essay is part of larger project on the specific nature of undocumented alien status in the liberal democratic polity.

The Equal Protection Component of the Citizenship Clause

On May 17, 1954 the Supreme Court handed down two decisions that for the first time categorically held that racial segregation in public schools was per se unlawful – Brown v. Board of Education and Bolling v. Sharpe. Ostensibly, both cases dealt with a same question; however, in Brown the entity accused of discrimination was a creature of the State of Kansas, while in Bolling the discrimination was practiced by the federal government. The problem that the Supreme Court faced was the language of the Fourteenth Amendment, which, by its own terms, guaranteed “equal protection of the laws” only vis-a-vis states and not the federal government. The Supreme Court recognized as much in Bolling, but ruled segregation illegal in the District of Columbia anyway. Bolling is now universally recognized as reaching an unquestionably correct result as a policy and moral matter. This recognition makes it all the harder for the adherents of originalism to defend their preferred approach to constitutional interpretation. Originalists are forced to concede that the Constitution, interpreted as originally understood, did not impose equal protection restraints on the federal government, and therefore, Bolling, in imposing these norms where they were not meant to be, was wrongly decided. Recognizing the political (and moral) problem with this approach, originalists have simply attempted to waive the problem away. The problem is that at least in the popular perception “[a] theory of constitutional interpretation that cannot account for Brown [and Bolling] is suspect if not discredited.” Some scholars, Robert Bork and Randy Barnett amongst them, have argued that although Bolling is indefensible as an originalist matter, this is not a real problem. According to them, even if Bolling were overruled no major problems would arise, if for no other reason than the federal government is politically constrained from running segregated schools or otherwise discriminating on the basis of race. This proposition is both dubious as a factual matter (or at the very least was so when Bolling was decided), and is unsatisfactory as a political matter. The general public is simply unlikely to buy into a judicial theory that would permit the federal government to discriminate at will on the basis of race. Accordingly, if originalism is to be broadly accepted by the public without being undermined by the discussion of Bolling and Brown, one needs to come up with a plausible explanation of how the results (if not the rationale) in those two cases can be supported under an originalist approach to constitutional interpretation. In this Article I argue that Bolling is justifiable as an originalist matter if one properly interprets the Citizenship Clause of the Fourteenth Amendment. Properly understood, the clause was meant to protect not just a right to a passport or nationality, but a much broader right of equal participation in the civic life of the Nation. The term “citizen” was understood by the framers and ratifiers of the Fourteenth Amendment to encompass a wide scope of political rights, including a right to equality before the law. When viewed from that perspective, it becomes apparent that Bolling was correctly decided not only from the political perspective, but from legal originalist one as well.

Born to Run: Can an American Samoan Become President?

American Samoa holds the unique distinction of being the only American jurisdiction whose residents have been declared by Congress to be U.S. nationals at birth, and not U.S. citizens. This article examines the question of whether an American born on U.S. soil as a national can become president within the meaning of the natural born citizen clause of Article II, Section I of the United States Constitution, or whether Congress can, by statute, deprive an American Samoan of presidential eligibility. The article explores the uphill battle an American Samoan candidate will face in light of Congress' broad Article IV power over U.S. territories and case law surrounding the Fourteenth Amendment's citizenship clause, and details legal avenues that may prove successful for presidential eligibility. The article argues that even if an American Samoan were technically ineligible under Article II, jurisdictional doctrines of political question and standing to challenge presidential elections, accompanied by possible Congressional reluctance to nullify an election, may prevent litigation from arising in the first place, and allow the ineligible candidate to prevail in obtaining the presidency.

Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause

The Citizenship Clause of the Fourteenth Amendment is typically understood as granting birthright citizenship to U.S.-born children of illegal aliens. However, this orthodox view is disputed by “consensualists” who argue that the original meaning of the Clause’s qualifier, “subject to the jurisdiction thereof,” would have excluded such children from citizenship, by requiring that the parents of such a child possess federal permission for their presence on American soil, and that they not owe any foreign allegiance. Yet this “consensualist interpretation” is incorrect on originalist grounds. Evidence from before, during, and after the Fourteenth Amendment’s enactment demonstrates that the original meaning of “subject to the jurisdiction thereof” is actually the same as the qualifier’s current, “orthodox” interpretation: “subject to the civil and criminal laws of the United States.” Hence, the Citizenship Clause’s original meaning, as understood by both Congress and the ratifying public, is consistent with birthright citizenship for illegal aliens’ children.

Reflective Equilibrium and Constitutional Method: Lessons from John McCain and the Natural Born Citizenship Clause

Reflective Equilibrium and Constitutional Method: Lessons from John McCain and the Natural Born Citizenship Clause

Originalism and the Natural Born Citizen Clause

The enigmatic phrase born poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a born was likely a of derived from the idea of a born in English law - a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of citizens and not subjects, introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.What was the original public meaning of the enigmatic phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of settled meaning: some cases of inclusion and exclusion seem indisputable. As a matter of inclusion, anyone born on American soil with an American parent is clearly a born citizen. As a matter of exclusion, anyone whose citizenship is acquired after birth as a result of naturalization is clearly not a born citizen. But these clear cases of inclusion and exclusion do not exhaust the possibilities. John McCain's citizenship was conferred by statute - perhaps before, but perhaps after his birth. That leaves John McCain in a twilight zone - neither clearly naturalized nor natural born.This Essay explores the contribution of originalism as a theory of constitutional interpretation to the controversy over the meaning of the natural born citizenship clause. Part II of the Essay explains the relevance of originalist constitutional theory to the controversy with special reference to the New Originalism - the view of constitutional meaning that emphasizes public meaning of the constitutional text at the time each provision was framed and ratified. Part III argues that that the clause creates a problem for public meaning originalism - the phrase born may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a term of art, in particular, the idea that the meaning of born derives from the English concept of a born subject. Part IV considers the possibility that the original meaning of the natural born citizen clause is subject to an irreducible ambiguity. Part V concludes with reflections on the exemplary significance of the natural born citizen clause for constitutional theory.

Who May Be President? Constitutional Reinterpretation of Article II's 'Natural Born' Presidential Eligibility Clause

Although facially clear, the natural-born citizen provision of Article II's presidential eligibility clause has never been definitively interpreted by the courts. This paper considers whether the concept of natural-born is a self-defining concept, or whether instead it is a concept that is subject to a variety of interpretive theories. It does so by examining the traditional interpretive approach adopted by Constitutional scholars for examining the intended meaning of Article II's presidential eligibility requirements. Such an analysis finds that the traditional approach is inadequate, particularly in light of neglected aspects of English common law, the lack of congruency of the English legacy with the American political experiment, the passage of the Fourteenth Amendment, and the history of congressional regulation in this area. The paper responds to these problems within existing traditions of natural born interpretation by proposing a new approach that includes a recognition of Congress's constitutional power to extend natural born citizenship to classes of citizens beyond those born within the territorial boundaries of the United States. Discussion concludes with an examination of how application of the new interpretative approach would expand the number of American citizens who may be considered natural born for purposes of presidential eligibility; how Congress might operationalize these new understandings; and why reconceptualization of the meaning of the citizenship clause is preferable to previous interpretations of Article II.