Over a long period of time, and digging deeper into Vattel, not primarily with Ted Cruz in mind, but with the travesty of “anchor babies” very much in mind, I came to the conclusion that 19th century jurisprudence often, erroneously and very gratuitously elevated jus soli above jus sanguinis.
The Framers were very vocal about their distaste for English common law, especially those aspects which derive from assuming a unitary sovereign. The concept of a ‘natural born subject’ was one of those things that was held in disfavor by many, perhaps a majority, of the Framers.
The preponderance of the evidence suggests to me that the Framers embraced the ideas of Vattel and there can be no question that Vattel gave primacy to jus sanguinis inheritance of citizenship. It is true that at the time of the Framers, citizenship of wives was taken to be that of the husbands, so it was not necessary for Vattel to specifically mention mothers, only fathers. Vattel very explicitly minimized the importance and indeed the relevance of the country of birth.
There are also other aspects of this analysis that have persuaded me that the term ‘natural born citizen’ is synonymous with ‘citizen by birth’, and importantly, was so at the time of the Framers as well.
I am also convinced that it is within the plenary power of the Congress, acting as the legislative agent of the sovereign, We the People, to set indicia that are to be used to determine - not to grant - this status of citizenship by birth. I find it no different to the plenary power of each state to determine by the acts of their legislatures the indicia by which they will determine who is and who is not a ‘resident’.
Both the term ‘resident’ and ‘natural born citizen’ appear in Article II, Clause 1, Paragraph 5, and both must be equally permitted of statutory clarification.
And that statutory clarification is subject to judicial review.