Democrat Senator Kamala Harris (CA) could be in for an unwelcome campaign surprise if she faces a constitutional eligibility challenge to her bid for the presidency. Why? Article II, Section 1, Clause 5 of the Constitution decrees that “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.” [Emphasis added].
While Senator Harris was born here, neither of her parents were American citizens at the time of her birth. Her father was a citizen of Jamaica, and her mother, a citizen of India. As discussed below, a patrilineal heritage is weighed heavily in determining the degree of citizenship required for anyone to become president.
While this issue has been discussed before, this article is not just another rehash of the basics of the debate over the meaning of “natural born Citizen,” as so many have been. Nor is it an attack on Senator Harris’ political ideology. It is blind to partisanship. Instead, it’s an in-depth account based on extensive research that provides proven insights into what the phrase meant to the Framers, how it came to be included in the Constitution, and what prerequisites for presidential eligibility flow from it.
The meaning of “natural born Citizen” was hotly debated during the 2008, 2012, and 2016 presidential elections. It arose as challenges to the candidacies of John McCain, Mitt Romney, and Ted Cruz, all of whom were born abroad. In 2008, President Obama’s eligibility was questioned, not because various people claimed he was born in Kenya, but because his father was not a U.S. citizen when he was born. The same is true of Marco Rubio, whose father was Cuban at the time of his birth. That’s important because the Framers believed that patrilineal citizenship was the touchstone on which the citizenship of their offspring was based. It emerges from the legal concept of jus sanguinis (‘law of the blood’), and that is essential for eligibility in the Framers’ view.
The debate about the meaning of “natural born Citizen” derives from a contemporary paucity of understanding of how the Framers interpreted the phrase. How it was defined by these august individuals involves far more than just being born here, and seems to stymy conventional political thought.
The confusion and debate could be rendered moot had a definition of the clause been included in the Constitution itself. But for reasons discussed below, the Framers can be forgiven for excluding its meaning. They were brilliant men working in a very different era and with a lexicon of the time from which meanings, simple and arcane, abide in their universal understanding. The meanings to them are very inconsistent with the definitions we use today.
What’s obvious is that the Framers could have simply written, “a person born here.” But they didn’t, and “natural born Citizen” has a meaning that escapes the wisdom of many of today’s historians and pundits.
The Washington Standard provided an excellent perspective on this in an article explaining why the Framers had no need to include the definition: “The meaning of this term is not set forth in The Constitution or in The Federalist Papers; and I found no discussion of the meaning in Madison’s Journal of the Federal Convention or in Alexander Hamilton’s notes of the same.”
What does this tell us? That they all knew what it meant. We don’t go around [today] defining ‘pizza,’ because every American over the age of two knows what a pizza is.
“Our Framers had no need to define ‘natural born Citizen’ in the Constitution, because by the time of the Federal Convention of 1787, a formal definition of the term consistent with the new republican principles already existed in Emer Vattel’s classic, Law of Nations.”
In addition, Newsweek wrote a story which gives us greater insight into the Framers’ complete understanding of how far Vattel went in defining the clause: “According to [Thomas] Lee [a professor of constitutional and international law at Fordham University], two legal theories of citizenship were popular at the time the Constitution was ratified: jus soli (Latin for ‘law of the land’), which held that a child’s citizenship flowed from the actual, physical place of his birth, and jus sanguinis (‘law of the blood’), which held that parents passed their citizenship to their children. However, Lee argues, at the time the Constitution was ratified, jus sanguinis applied only to ‘patrilineal descent.’ That means that the place of birth and the citizenship of the father is what determines the child’s citizenship at the time of his birth.” Vattel, and subsequently the Framers, were ardent proponents of jus sanguinis.
Law of Nations itself actually comprises of two volumes and was written in 1758 by Emerich de Vattel, a profoundly gifted political philosopher who lived in Switzerland. The book was a source on which the Framers relied heavily during the Convention.
How do we know that? I found Vattel’s books in the reference library used by the Framers and Congress, as well as the private libraries of Framers and Founding Fathers (see below). It was widely used prior to the convention by members of Congress, as explained by Benjamin Franklin in a letter he sent to Charles-Guillaume-Frédéric Dumas on December 9, 1775.
Dumas had sent three copies of Law of Nations to Franklin, who wrote back: “I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. [Emphasis added]. Accordingly, that copy which I kept (after depositing one in our own public library here, and sending the other to the college of Massachusetts Bay, as you directed) has been continually in the hands of the members of our congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author.” [Emphasis added].
True, Franklin was referring to members of Congress in 1775, but many of them became delegates to the Constitutional Convention. According to the United States Senate: “During the summer of 1787, the delegates to the Constitutional Convention established equal representation in the Senate and proportional representation in the House of Representatives.”
Among other delegates to the convention, and other Founding Fathers not present, Vattel’s book was relied upon as a blueprint for building a new nation from scratch.
My research has led me to various entities where the Law of Nations was and still is, kept. It is in the Report on Books for Congress and in Book Selections of Founding Fathers. It is also in the personal libraries of John Jay, George Washington, Benjamin Franklin, James Madison, Thomas Jefferson, and Alexander Hamilton, who relied on it throughout the convention. I also found it in John Adams’ book collection, under the category “Law,” where it is listed as “Vatel’s [sic] law of Nations.” Adams was not at the convention but certainly was a Founding Father.
While the book was originally written in French, the Framers, for the most part, had classical educations which involved knowledge and understanding of French and other languages, such as Latin and Greek.
Only nominally fluent in French, I fortuitously found an English version, and the specific text explaining “natural born Citizen.” It’s in Book I, Chapter XIX, Of Our Native Country and Several Things that Relate to It, § 212, page 101, which states. “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” [Emphasis added].
Here’s where we can better understand the role played by patrilineal descent. Vattel explains: “As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as a matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is, therefore, that of the children; and these become true citizens merely by their tacit consent. [Emphasis added]. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.” [Emphasis added].
So, how and why did the phrase wind up in the Constitution? John Jay, one of three authors of the Federalist Papers, Governor of New York, and first Chief Justice of the U.S. Supreme Court, was serving as Secretary of Foreign Affairs during the convention, thus his absence from the conclave. Being involved in the foreign affairs of the budding nation didn’t keep him from providing what was to him urgent advice.
For inclusion of it in the Constitution, it first appears in Jay’s letter to Washington, which reads in part: “Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national government, and to declare expressly that the Commander in chief of the American [sic] army shall not be given to, nor devolved on, any but a natural born Citizen.”
Washington had it added to our founding document without debate, which strongly indicates that Washington and Jay knew how Benjamin Franklin, Thomas Jefferson, James Madison, Alexander Hamilton, and other delegates already interpreted its true meaning.
Bolstering that understanding further is the story about a little-known incident of skullduggery that motivated John Jay to write his letter to Washington in the first place.
In addition to his involvement as a Founding Father and high office holder, John Jay is considered the father of American counterintelligence, a discipline he developed during the Revolution, according to the CIA.
It was made manifest in Jay’s letter to Washington in response to a tip he received about members of European royalty considering coming here to run for president and turning the country into a monarchy. Historians know that was a topic much discussed during the convention (many delegates wanted to make George Washington king, but he wisely turned it down), as stated by Thomas H. Lee, in Natural Born Citizen, Fordham University School of Law, Vol. 67:327, page 354, paragraph 3.
According to historian and professor, [first name] Charles: “The name of [Baron] von Steuben is not mentioned, but there can be little doubt that it was he…with his sympathies for the followers of Shay, and his evidently suspected dealings with Prince Henry of Prussia, whom Jay had in mind when he penned these words.”
General Friedrich Wilhelm Von Steuben, a low-ranking officer in the Prussian Army, came here during the Revolution and was promoted to the rank of General. Unable to understand or speak English, he was nonetheless instrumental in training our rebel forces via a translator. After the Revolution, he supported Shay’s Rebellion and was angry when it was put down by Washington. That, and his relationship with Prussia’s Prince Henry, got Jay’s attention.
Washington’s response to Jay‘s letter indicates their mutual understanding of the plot. It was written on September 2, 1787, and concludes with: “I thank you for the hints contained in your letter.” [Emphasis added]. The use of “hints” in response to Jay’s use of “hint” suggests that Washington became familiar with the potential threat in the months before he responded to Jay’s letter.
Nonetheless, Jay’s missive was intended to warn the Framers against foreigners becoming president and that those born here to parents, not citizens of the country, would be handicapped by divided national loyalties.
In the context of Kamala Harris, at least one fact-checking site has claimed that this is all bogus and that the Supreme Court has yet to address “natural born Citizen,” so no worries. Kamala Harris is a natural born Citizen. What one must wonder about such acquittals is if, as fact-checkers, they are doing the necessary research to arrive at that conclusion. It’s clear they don’t truly understand the intent of the Framers and think that in the absence of a SCOTUS ruling, anyone born here can run for president. They are mistaken.
SCOTUS has commented on the phrase. In the majority opinion in Minor v. Happersett, a case involving a naturalization law, not eligibility for the presidency, the court found that: “At common-law, with the nomenclature of which the Framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.” [Emphasis added]
What happens next if this comes up as a challenge to Harris’ candidacy falls on how the political party involved responds if she were to replace Joe Biden. Political parties must certify that their nominees are natural-born American citizens and thus eligible to be president.
The Republicans could mount a legal challenge to Harris’ eligibility (although it’s not likely, individuals and organizations could try to bring a case against her). That could force the Democrats to have to prove that she’s eligible, and that would inevitably put the issue before the SCOTUS, where the task of the justices has traditionally been divining the intent of the Framers. They must not allow themselves the luxury of relying on the contemporary national glossary but rather adhere to how the Framer’s defined “natural born Citizen.”
Unfortunately, that proper mindset is far from guaranteed in this era of rancorous partisanship. We can only hope and pray that our Constitution and its meaning at the time it was written is still in force and effect. If so interpreted, Kamala Harris would have to decide whether her own ambitions are more important than the good of the country. If Biden wins and she becomes President, she would be considered an interloper.