Posted on 02/07/2016 6:49:10 AM PST by Robert DeLong
We have both had the privilege of heading the Office of the Solicitor General during different administrations. We may have different ideas about the ideal candidate in the next presidential election, but we agree on one important principle: voters should be able to choose from all constitutionally eligible candidates, free from spurious arguments that a U.S. citizen at birth is somehow not constitutionally eligible to serve as President simply because he was delivered at a hospital abroad.
The Constitution directly addresses the minimum qualifications necessary to serve as President. In addition to requiring thirty-five years of age and fourteen years of residency, the Constitution limits the presidency to "a natural born Citizen." All the sources routinely used to interpret the Constitution confirm that the phrase "natural born Citizen" has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.
While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a "natural born Citizen" means a citizen from birth with no need to go through naturalization proceedings. The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law.
As to the British practice, laws in force in the 1700s recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used "natural born" to encompass such children. These statutes provided that children born abroad to subjects of the British Empire were "natural-born Subjects . . . to all Intents, Constructions, and Purposes whatsoever." The Framers, of course, would have been intimately familiar with these statutes and the way they used terms like "natural born," since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone's Commentaries, a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.
No doubt informed by this longstanding tradition, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were "natural born Citizens." The Naturalization Act of 1790 provided that "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . ." The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress. That is particularly true in this instance, as eight of the eleven members of the committee that proposed the natural born eligibility requirement to the Convention served in the First Congress and none objected to a definition of “natural born Citizen†that included persons born abroad to citizen parents.
The proviso in the Naturalization Act of 1790 underscores that while the concept of "natural born Citizen" has remained constant and plainly includes someone who is a citizen from birth by descent without the need to undergo naturalization proceedings, the details of which individuals born abroad to a citizen parent qualify as citizens from birth have changed. The pre-Revolution British statutes sometimes focused on paternity such that only children of citizen fathers were granted citizenship at birth. The Naturalization Act of 1790 expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the United States at some point. But Congress eliminated that differential treatment of citizen mothers and fathers before any of the potential candidates in the current presidential election were born. Thus, in the relevant time period, and subject to certain residency requirements, children born abroad of a citizen parent were citizens from the moment of birth, and thus are "natural born Citizens."
The original meaning of "natural born Citizen" also comports with what we know of the Framers' purpose in including this language in the Constitution. The phrase first appeared in the draft Constitution shortly after George Washington received a letter from John Jay, the future first Chief Justice of the United States, suggesting:
[W]hether 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 Command in chief of the american [sic] army shall not be given to, nor devolve on, any but a natural born Citizen.
As recounted by Justice Joseph Story in his famous Commentaries on the Constitution, the purpose of the natural born Citizen clause was thus to "cut off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interpose a barrier against those corrupt interferences of foreign governments in executive elections." The Framers did not fear such machinations from those who were U.S. citizens from birth just because of the happenstance of a foreign birthplace. Indeed, John Jay's own children were born abroad while he served on diplomatic assignments, and it would be absurd to conclude that Jay proposed to exclude his own children, as foreigners of dubious loyalty, from presidential eligibility.
While the field of candidates for the next presidential election is still taking shape, at least one potential candidate, Senator Ted Cruz, was born in a Canadian hospital to a U.S. citizen mother. Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a "natural born Citizen" within the meaning of the Constitution. Indeed, because his father had also been resident in the United States, Senator Cruz would have been a "natural born Citizen" even under the Naturalization Act of 1790. Similarly, in 2008, one of the two major party candidates for President, Senator John McCain, was born outside the United States on a U.S. military base in the Panama Canal Zone to a U.S. citizen parent. Despite a few spurious suggestions to the contrary, there is no serious question that Senator McCain was fully eligible to serve as President, wholly apart from any murky debate about the precise sovereign status of the Panama Canal Zone at the time of Senator McCain's birth. Indeed, this aspect of Senator McCain's candidacy was a source of bipartisan accord. The U.S. Senate unanimously agreed that Senator McCain was eligible for the presidency, resolving that any interpretation of the natural born citizenship clause as limited to those born within the United States was "inconsistent with the purpose and intent of the 'natural born Citizen' clause of the Constitution of the United States, as evidenced by the First Congress's own statute defining the term 'natural born Citizen.'" And for the same reasons, both Senator Barry Goldwater and Governor and Governor Romney was born in Mexico to U.S. citizen parents and unsuccessfully pursued the Republican nomination for President in 1968.
There are plenty of serious issues to debate in the upcoming presidential election cycle. The less time spent dealing with specious objections to candidate eligibility, the better. Fortunately, the Constitution is refreshingly clear on these eligibility issues. To serve, an individual must be at least thirty-five years old and a "natural born Citizen." Thirty-four and a half is not enough and, for better or worse, a naturalized citizen cannot serve. But as Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase "natural born Citizen" in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent - whether in California or Canada or the Canal Zone - is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose.
Got it thanks.
“That generation didn’t need NBC to be written out, they knew it by heart.”
Yes, and they knew it by heart because it was common knowledge that a child born in England with alien parents was not eligible to hold government offices ranging from the Privy Council down to the lowest of the local officials. Even though the English practice was to describe such persons with alien parents or birth abroad as natural born subjects, in actuality they were formerly described as persons to be considered as natural born subjects, and by habit the “considered as” part of the description was omitted, despite the fact they were still naturalized subjects carrying around the description of natural born subjects to confuse later generations.
Your statement captures the founder's intent perfectly and their language does not detract from that intent!
Jay, in his letter, was specifically talking about the CIC and foreign entanglements by virtue of birthplace and parentage. As I have argued elsewhere, it is inconceivable General Geo. Washington have agreed that NBC extended to one born in England to an English parent.
Then this whole issue will be easily satisfied by obtaining a ruling from the court that Cruz is a natural born citizen. IIRC there is at least one challenge pending. But I predict the court will punt and cite some reason for NOT making a ruling.
I could care less which way the court decides - but I am of the opinion that 8 years of controversy over this is more than enough and since we are again facing questions about the actual definition - we need a definitive ruling.
No, when Ted was born, his parents hadn’t been in canada long enough to qualify for Canadian citizenship.
It would have been afterward, and it was only Teds dad who got Canadian citizenship.
OK, I see that Ted’s father became a Canadian citizen in 1973, so that makes Ted Cruz a Canadian Anchor Baby, just as Donald Trump said recently. Still unsettled law, but it probably will become irrelevant in a couple of months when Donald Trump warps up the nomination.
Remember that when that was written, the citizenship of the wife followed that of her husband.
I.e., when she married, she changed citizenship if the man wasn’t the same citizenship as her.
You're right and, fwiw, according to this: 4 Supreme Court Cases define "natural born citizen".
As it is, many have tried to get the SCOTUS to take a peek at obama's situation, but all such cases have "lacked standing", doncha know.
These days, "Supreme Court Renegades" might be more accurate and comes with a cooler/more accurate acronym as a bonus.
So...here we are. Just faking it and free to make it up as we go.
Not good. "For lack of guidance, a nation falls..." (Proverbs 11:14).
“No I am not saying it did change the requirements for President. I was just referring you to the Naturalization Act of 1790 in my earlier post, which talked about children born to citizens living in a foreign country at the time of the child’s birth.”
A commonly found argument is the false claim that the Naturalization Act of 1790 says a child born abroad with U.S. citizen parents is a natural born citizen. In fact, the Naturalization Act of 1790 says the exact opposite by making such a child a naturalized U.S. citizen. The problem is with the failure of the reader to comprehend the sentence, where it says “shall be considered as a natural born citizen.” In fact, the use of the “considered as” phrasing is legal terminology meaning the child born abroad will be “considered as” if or accepted as (Merriam-Webster Dictionary) if the child were born with some and not all of the conditions of citizenship enjoyed by an actual natural born citizen.
How much more clearer can it be when the Supreme Court said: “can only become a citizen by being naturalized....”
You actually have to follow the entire conversation between that person and myself to understand the context, not that that is worth it though as I have deferred to your excellent references regarding the issue.
Just providing clarification for all of the readers of those posts. It is a frequently disputed reading of the phrase, and most readers skip over most of the other posts.
The term “Natural Born Citizen” is not a term defined by any governmental law. It is a term defined by Nature itself.
The cornerstone of Natural Law is self-evidence. Whensoever there is a conflict between this self-evidence and any other thing, there is no binding Natural Law at work.
Thus, when lineage became passed through both father and mother, the self-evidence of the father’s nationality dictating the child’s ended. Now, for self-evidence to persist, both parents must be citizens of this nation with a child born within its borders for it to be a Natural Born Child.
Congress was given the power, by the Constitution, to Naturalize citizens. A Naturalized Citizen can be from any land, adhering to the laws and oaths that bind him to a new nation, “naturalizing” that person into citizenship.
Congress NEVER had the power to do anything other than that with respect to citizenship. However, having the power to do such a thing, it was assumed they had unlimited powers with respect to that thing. Thus, Congress HAS the power to Naturalize citizens AT BIRTH, without requiring any *process* for that Naturalization.
This doesn’t create a Natural Born Citizen. It creates a Naturalized citizen who need not be processed by a bureaucracy to become a citizen.
The point is moot, as we are no longer living under Constitutional Law.
In fact, he liked to start the class a bit of minutia as a way for introducing a new section or concept. Interestingly enough "natural born citizen" was one of those teasers (long before Obama was a US senator). To cut to the chase, my professor's opinion was that if citizenship was granted as a right (no bureaucrat approval required), then that person was a natural born citizen. Now I'm certain that there are a lot of wrinkles in applying that concept, but if you start from that position, then a lot of clarity can be brought quickly to an individual case.
They defined, maybe, one case where someone is not a natural born citizen. They did NOT define what one is. If, after all these years that is still unclear - I can not help.
All the opinions out there are just that, mine included.
That is what happens when courts refuse to rule on matters, they remain unclear and subject to endless debate.
FWIW, I tend to agree with you on the definiton - but my opinion is meaningless.
It's only moot when you have no desire to return to Constitutional law.
If that is the case, then it would mean “anchor babies” are “natural born” citizens. Do you believe that is what the Framer’s had in mind?
What about living abroad with and adopted by a parent in a country that does not allow dual citizenship like Indonesia.
Interesting. Cruz was born in Canada in 1970 to an Cuban national or a Canadian citizen father and a US Citizen mother. This would make Cruz a natural born citizen of Canada and an automatic naturalized US citizen.
Canada did not allow dual citizenship in 1970 and so would not recognize any claim to US citizen status.
There is no way that Cruz can be a Natural Born Citizen of the US. Citizen? Yes, naturalized at birth but not NBC.
The fact that Canada did not recognize any claim to US citizenship has no bearing on whether the US would recognize a claim to US citizenship. Our State Department, for example, doesn’t care whether you have citizenship in another country. It’s irrelevant, for example, to the question of whether you, as a US citizen, are eligible to have a US passport.
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