67 Am. U. L. Rev. F. 15 (2018).

*Member, New York State Bar. Thank you to the editors of the American University Law Review for their editorial assistance. Thanks also to the anonymous legal scholars affiliated with the British Journal of American Legal Studies who peer-reviewed many of the author’s English and British law conclusions that follow in connection with the preparation of John Vlahoplus, Toward Natural Born Derivative Citizenship, 7 Brit. J. Am. Legal Stud. 71 (2018). Mistakes remain the author’s own.

In “Natural Born Citizen,” Thomas H. Lee provides a challenging and, in his own words, “novel interpretation” of the original meaning of that constitutional term. Professor Lee analyzes a wide range of sources including American constitutional history, Anglo-American legal treatises, continental natural law theory, and four centuries of English and British statutes and political and economic history. He concludes that the original meaning of the term at the adoption of the Constitution includes foreign-born children of “U.S. citizen fathers who had resided in the United States but went abroad temporarily for a private purpose,” following the natural law principle of jus sanguinis (right of blood). He considers the analysis to be important in part because it shows “how to do originalism.”
This Response disputes Lee’s conclusion and argues that he overlooks or misinterprets important authorities including writings of the Founders, legislative history from the First Congress, the 1608 English decision in Calvin’s Case, relevant portions of Blackstone’s Commentaries, and the English and British statutes and cases interpreting them. It suggests that “Natural Born Citizen” represents a constructive rather than an originalist interpretation of the Constitution. Finally, it suggests that Lee’s conclusion implies significant additional rights to birthright citizenship and judicial power to interpret natural law in the constitutional context. “Natural Born Citizen” may not be originalism, and it may not restrain judicial power as some intend originalism to do, but it is certainly a bold and challenging interpretation of Anglo-American legal history that merits close attention.