There has been some discussion in the blogosphere recently of the constitutional requirement that the United States President be a "natural born citizen." Here is the relevant passage from Article II:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
John McCain was born in the "Canal Zone," the portion of Panama that was administered by the United States under the terms of the Panama Canal Treaty. As the New York Times put it:
Mr. McCain’s likely nomination as the Republican candidate for president and the happenstance of his birth in the Panama Canal Zone in 1936 are reviving a musty debate that has surfaced periodically since the founders first set quill to parchment and declared that only a “natural-born citizen” can hold the nation’s highest office.
Congress apparently interpreted this caluse when it enacted the first naturalization law on March 16, 1790:
"And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens."
Justice Curtis, offered the following interpretation in his dissent in Dred Scott v. Sanford:
"The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth."
But "place of birth" does not appear in another gloss--this from the Minor v. Happersett, an 1874 decision of the Supreme Court:
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it providesFN6 that ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,'FN7 and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization.
This passage suggests that the opposition is between (1) citizens by birth (natural born) and (2) citizens by naturalization (not natural born).
And those who are intratextually minded are likely to consider the Fourteenth Amendment, which provides:
"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."
So far as I can tell, only two other major presidential candidates since the founding era (when no one was born in the United States since it didn't exist) have been born of American parentage on foreign shores--Barry Goldwater & George Romney. These examples are contemporary, and the constitutional issue never crystallized in either case. Romney lost the Republican nomination to Nixon, and Goldwater lost the election to Johnson.
Original Public Meaning
So what is the original public meaning of the phrase "natural born citizen"? We might begin by ruling out an anachronistic and implausbile reading that might distinguish "natural birth" from C-sections or perhaps in-vitro fertilization. It seems obvious that the semantic content of the clause should be derived from usages that were contemporaneous with the framing and ratification of the Constitution of 1789.
Nor does it seem reasonable to interpret the phrase "natural born citizen" as the concatenation of the meaning of the individual words "natural," "born," and "citizen." The concatenated meaning might make every human whose birth was not supernatural ("virgin birth?") a natural born citizen, but this meaning bears no relation to the context. Rather, it seems likely that the public of 1789 would have recognized that the unit that bears meaning in the context of the clause is the triplet "natural born citizen."
Was this phrase in "general circulation," such that competent speakers of American English of the late 18th century would have recognized some meaning or set of alternative meanings as the "conventional semantic meaning" or equivalently "public meaning" of the phrase. It's hard to say without doing more research. The alternative possibility is ordinary speakers would have considered the possibility that "natural born citizen" was a technical legal phrase, and deferred, given the division of linguistic labor, to specialist usage. In this case, it would likely have been a legal usage.
Jim Lindgren suggests that late 18th Century usage did assign the phrase a specialized legal meaning:
I read with some amusement the struggles that some non-lawyers [and some lawyers as well] have been having understanding the language of Art II, Sec. 1 of the U.S. Constitution: "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President . . . ." 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)
The is more to Lindgren's post, but this gives you the flavor! Lindgren argues that the original public meaning of the phrase "natural born citizen" was not ambiguous, and that it supports the "citizen by birth" interpretation.
Dorf on the Clause
Second, a variety of American statutes adopted in the early Republic used language that could either be interpreted to mean that Congress thought that it needed to provide special legislation to confer citizenship on persons born outside the U.S., or that Congress assumed such people were "natural born citizens," and was merely confirming this assumption in legislation. Again, as Gordon himself concludes, the evidence of the original understanding is unclear.
What does a good originalist do when the evidence of the original understanding is unclear? Originalists aren't in full agreement on this point. Most of them usually say, in essence, that even if it's unclear what the original understanding was, judges (and other constitutional interpreters) should press on, and do their best to guess what it was. Others (perhaps this group doesn't quite deserve the name "originalists") allow for instrumental and normative arguments if the evidence of original understanding is truly indeterminate.
However, if one is not burdened by the label of "originalist," then this is a pretty easy question. The "natural born citizen" requirement manifests a distrust of the foreign-born that, in a nation of immigrants, can only be derided as repugnant. I both "reject" it and I "denounce" it! It's still part of the Constitution, however, and therefore we need to try to figure out what it means. My frankly normative move would be to limit the damage by limiting the scope of "foreign-born." There's no plausible way to read the provision to permit Schwarzenegger and other naturalized citizens to become President. There is a ready (if not 100% clearly the original) way to read it to permit Americans born abroad to U.S. parents to become citizens. Too bad for John McCain he can't in good conscience just say that. For though my position is straight talk, it's not exactly originalism.
Dorf's framing of the semantic question is imprecise. He seems to be arguing that the phrase "natural born citizen" is ambiguous, having the two senses identified above: (1) citizen by virtue of birth on American soil, or (2) citizen by birth to American parents. I am not convinced that the evidence really supports the ambiguity that Dorf seems to claim is present. The key question (for an original public meaning originalist) is whether contemporary specialist usage of the phrase supported the "American soil" interpretation. On this issue, Lindgren has compelling evidence, and most of the contrary evidence comes from context where the possibility of birth abroad of American parents was not an issue. But that isn't the point of this post. Rather, I want to consider the possibility that Dorf is right & that the phrase is ambiguous--in the technical sense that it possesses two or more meanings.
Public Meaning Originalism and the Problem of "Original Ambiguity"
What resources do originalists have when ambiguous language is used in the Constitution. One possibility is that the context of constitutional utterance resolves the ambiguity. That is, some ambiguous words and phrases can be disambiguated by context. But in some cases, context may not resolve te ambiguity. Let us suppose then, perhaps counterfactually, that the original public meaning of the phrase "natural born citizen" would have been understood as ambiguous by either ordinary citizens or (if it is a "phrase of art," then by the relevant specialists, persons learned in the law). That is they would have said, "The meaning of this provision is ambiguous, even taking context into account. It could mean "born on American soil" or it could mean "born of American parents."
It is at this point that "new originalists," for example Keith Whittington and Randy Barnett suggest that "interpretation runs out," and a different modality of constitutional practice must be engaged--this is what Whittington calls "constitutional construction," where construction is the modality of constitutional practice that resolves irreducible constitutional vagueness or ambiguity. Once we have arrived at this stage, the resources of "original public meaning originalism" have been exchaused--by definition. Interpretation tells us that the meaning (semantic content) of the provision was vague or ambiguous. So a construction is required in order to resolve the ambiguity or draw the line that will permit the application of the vague provision.
Of course, originalism is a family of theories and not a single view. Although many "new originalists" agree on "original public meaning" as the correct account of constitutional interpretation, there is wider divergence on what is the best theory of constitutional construction. Randy Barnett's distinctive theory of constitutional legitimacy sanctions as justice-enhancing account of constitutional construction. Keith Whittington has emphasized deference to democratic political processes. Jack Balkin suggests that construction should be guided by reference to the purpose of the constitutional provision at hand. But all of these are theories of constitutional construction held by theorists who are recognized as "new originalists."
Dorf's own analysis actually seems to be originalist as well. Of course, Dorf is free to label his own views--he is entitled to claim that he is "not burdened by the label of 'originalist,'" but it also fair to ask whether the substance of his views is consistent with originalist theory. Of course, that's not easy to discern from a single blog post, but so far as I can tell, Dorf's methodology is entirely consistent with the "new originalism," that is, with the view that the semantic content of the Constitution is fixed by its original public meaning.
Dorf seems to believe that his move to values is sanctioned by what we might call "original ambiguity." If there were clear evidence of the original public meaning of "natural born citizen," then it seems the Dorf's understanding of "plausibility" would require that he accept that meaning. But because Dorf believes, pace Lindgren, that when the original public meaning is exhausted there remains residual ambiguity, he believes he is warranted to resorting to a justice-enhancing principle of construction. Dorf's method of constitutional construction is a variation of Barnett's theory of constitutional construction, but with Dorf's views about justice substituted for Barnett's.
Read Dorf & Lindgren.