Page:Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement.pdf/12



Common Law and the Constitution
If the term “natural born” with respect to citizenship conveyed a concept clearly within the English common law, there would then be a strong implication that such term and its legal meaning would either have been incorporated into, or at least would strongly influence the framers in using such phrase, as well as subsequent interpretive construction by the courts of the relevant provision of the U.S. Constitution. As noted by the Supreme Court, "There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."

Many of the terms used in the U.S. Constitution were not specifically defined in that document (such as “natural born” citizen, the privilege of the writ of “habeas corpus,” and the prohibitions against “bills of attainder” and “ex post facto” laws, for example), and thus referral to the English common law, “well known” to the framers and applicable in the American colonies, must be made for a definitional reference for such terms. The Supreme Court has explained with reference to the constitutional prohibition on “ex post facto” laws, for example, that the meaning of such term, not defined in the Constitution, requires some explanation, and that “the necessary explanation is derived from English common law well known to the Framers:” "The proscription against ex post facto laws “necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing.” Calder v. Bull, 3 Dallas 386, 390 (1798) (Chase, J.). In Calder v. Bull, Justice Chase stated that the necessary explanation is derived from English common law well known to the Framers: “The expressions ‘ex post facto laws,’ are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors.” Id. at 391; see also id. at 389."

Similarly, Chief Justice (and former President) Taft explained (in a Supreme Court decision dealing with the parameters of the offenses to which the “pardon” authority of the President extends) that the meaning of the language and phrases in the Constitution, when they are not specifically defined in that document, can only be discerned and interpreted by reference to the British common law in place at the time of the drafting of the Constitution. The Chief Justice, writing for a unanimous Court, found that the British common law was what the framers “were born and brought up in,” that the framers “thought and spoke in its vocabulary,” and was thus what the “statesmen and lawyers of the Convention” employed for the meaning of the terms in the Constitution “confident that they could be shortly and easily understood:” Rh