Source:
http://www.aulawreview.org/natural-born-citizen/
There are two leading views of the original meaning of the constitutional requirement to be a “natural born Citizen” for presidential eligibility. The first, espoused most recently by Professors Einer Elhauge and Mary Brigid McManamon, is that a natural born citizen who is eligible to be President is any person born within the United States, unless the person is the child of a foreign ambassador or enemy soldier.[7] By the same token, any person born outside of the United States to a U.S. ambassador or to a U.S. soldier in a hostile army would also be a “natural born Citizen” of the United States.[8] The idea that membership in a polity is determined principally by birthplace is known by the Latinism jus soli—the “law of soil.”[9] Proponents of this view assert that jus soli was the common law of England as to who was a “natural born subject,” and that the U.S. Constitution’s “natural born Citizen” requirement for presidential eligibility adopted the same English meaning.[10]
This viewpoint is wrong on both counts: jus soli was not the exclusive rule at English common law, and the English common law of natural born subjectship was not the exclusive source of the meaning of “natural born Citizen” in Article II of the U.S. Constitution. “Common law” in this context means the evolving customary law of England as reflected not only in judicial decisions, but also in landmark statutes. Further, early Americans also consulted treatises summarizing English law, most importantly William Blackstone’s Commentaries.[11]
First, jus soli may have been the ancient Anglo-Saxon common law before the Norman conquest of 1066, but it was not the sole principle of natural born subjectship at English common law when the U.S. Constitution was adopted centuries later. As historian James Kettner put it, “English jurists had no conscious attachment to the jus soli . . . . Ancestry could also determine who was a ‘natural-born subject.’”[12] In fact, starting in 1350, Parliament passed statutes bestowing subject status upon the foreign-born children of English subjects, thereby invoking the other great Western natural law birthright principle, jus sanguinis—the “law of blood” or parentage.[13] Jus sanguinis was the Roman rule of citizenship, and it was long dominant on the European continent with its shifting borders and overlapping allegiances.[14] But, jus sanguinis penetrated England and then Great Britain, especially in its eighteenth-century mercantilist phase, by which time Parliament had long extended “natural born” status to the foreign-born children of British subjects in government service and of British fathers generally.[15] Some of the most settled of these statutes, by virtue of their ancient and uncontroversial status, had become part of the common law tradition, not departures from it. However, descent by parentage had a gender skew under natural law in late eighteenth-century Europe and America: the father’s blood determined the political allegiance of free persons at birth; the mother was legally irrelevant.[16]
Second, although English common law was the principal source of U.S. constitutional law, it was not the only source. The common law was the taproot of U.S. constitutional provisions with an English pedigree like habeas corpus and the criminal and civil jury trial rights, but early Americans did not reflexively adopt the British law of natural born subjects in defining who was a natural born citizen eligible for the Presidency. The British Empire had “subjects” whose allegiance to the Crown was viewed as analogous to a child’s obeisance to a parent, a bond the Americans had fought to escape.[17] “Citizens” of the American republic, by contrast, were seen as bound by explicit or implicit consent to a society of equals, analogous to a social contract.[18] The ramifications of this political-theory distinction between subject and citizen for “natural born” status are underappreciated. The concept of citizenship that Americans embraced attributed greater independence and agency to individuals to pass on their political allegiance, by contrast to subjectship which presumed that allegiance was solely a function of birth within the sovereign’s domains.