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.
“All the opinions out there are just that, mine included.”
Actually it is not, because the law of nature is what it is despite any and all opinions and statutory laws to the contrary. Example: you can have two fathers, one is a natural father by whom the child is begotten and the other one is an adoptive father by whom the child is adopted by statutory law. The natural father is the actual father due to the natural circumstances and not by law, while the adoptive father is made the pretended father by authority of a statutory law artificially made by man.
Thanks, but that has no relationship to the NBC of running for POTUS and even an anchor baby is considered NBC here, now.
It was also that a person born outside Britain to a British citizen, was British NBC, probably because a large segment of Brits were routinely coming and going all about the planet. That precedent was recognized in the USA as well.
“Thanks, but that has no relationship to the NBC of running for POTUS and even an anchor baby is considered NBC here, now.”
On the contrary, it has everything to do with the Constitution’s natural born citizen clause, because that clause was merely a much more limited continuation of a standard practice for thousands of years.
No, an anchor baby is not and cannot be a natural born citizen. The anchor baby can acquire U.S. citizenship only by the authority of the naturalization law, and such naturalized citizens are not natural born citizens.
“It was also that a person born outside Britain to a British citizen, was British NBC, probably because a large segment of Brits were routinely coming and going all about the planet. That precedent was recognized in the USA as well.”
All children, except those protected by diplomatic immunity, who were born abroad were alien born and were subsequently naturalized at birth or after birth and to be considered as natural born subjects despite not being actual natural born subjects.
Your contention begs for your posting specific verification. With all due respect, otherwise its simply a lay opinion.
“Your contention begs for your posting specific verification. With all due respect, otherwise its simply a lay opinion.”
How much more specific verification is needed given the numerous naturalization laws, U.S. Supreme Court statements, English case law, law dictionaries, Blackstone’s Commentaries, Calvin’s Case, and Roman law, and ancient Athenian law already posted in the past? There is a mountain of evidence demonstrating how naturalization and natural born citizenship works that is being denied without a rational basis.
“The fact that Canada did not recognize any claim to US citizenship”
There are periods of time in which a claim of U.S. citizenship by Ted Cruz was supposed to invalidate the Canadian natural born citizenship acquired at birth.
There is some case law,as you mentioned. The problem for birthers is that none of it backs up the claim that a legal US citizen giving birth to a child outside the boundaries of the USA in which said person born is not a Natural Born Citizen or does not satisfy the NBC requirements for POTUS.
The previous argument regarding NBC for nobama centered around his mother being too young to confer such NBC.
Mother Cruz met all the requirements of age and residency and thus did confer NBC to her son. We both know that as fact.
The 14th Amendment
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside."
Key phrase here "and subject to the jurisdiction thereof". A legal immigrant, even though not a citizen, is "subject to the jurisdiction" of the US.
An ILLEGAL alien, coming here in violation of US law, does not fall under the definition. See here and here.
“There is some case law,as you mentioned. The problem for birthers is that none of it backs up the claim that a legal US citizen giving birth to a child outside the boundaries of the USA in which said person born is not a Natural Born Citizen or does not satisfy the NBC requirements for POTUS.”
That is a completely false statement. United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. said “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized....” Naturalized citizens are not natural born citizens and are ineligible to be a lawful POTUS. The repealed naturalization Act of 1790 also says a person born abroad with U.S. citizen parents is not a natural born citizen, and you cannot be POTUS unless you are a natural borncitizen. Ted Cruz was born abroad, had only one U.S. citizen parent, and acquired U.S. citizenship only by naturalization at birth under the authority of the U.S. Immigration and Naturalization Act of 1952, which makes him ineligible to lawfully serve as POTUS.
“The previous argument regarding NBC for nobama centered around his mother being too young to confer such NBC.”
The only claim Ted Cruz has to any form of U.S. citizenship is through his birth with a U.S. citizen mother, and the only legal authority for the acquisition of U.S. citizenship when the child is born abroad with one or two U.S. citizen parents is the Immigration and Naturalization Act of 1952 providing the acquisition of U.S. citizenship by naturalization at birth. Again, the U.S. Supreme Court noted in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. said “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized....â€
“Mother Cruz met all the requirements of age and residency and thus did confer NBC to her son. We both know that as fact.”
All of which has no significance other than to qualify Ted Cruz to acquire U.S. citizenship by naturalization at birth by the legal authority of the U.S. Immigration and Naturalization Act of 1952. See:
66 Stat. Public Law 414 - June 27, 1952. TITLE III - NATIONALITY AND NATURALIZATION. Chapter 1 - Nationality at Birth and by Collective Naturalization. NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH. Sec. 301. (a) The following shall be nationals and citizens of the United States at birth; . . . (7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at lest five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.
Ted Cruz is a naturalized U.S. citizen, and he is not and cannot possibly be a natural born citizen of the United States.
Well Big Boy, if YOU found the key, we will be waiting to hear where you file suit on Cruz’s NBC.
Then again, not one of your examples is germane and is an exercise of pissin in the wind.
“Well Big Boy, if YOU found the key, we will be waiting to hear where you file suit on Cruz’s NBC.”
Pony up the money to pay the attorneys.
“Then again, not one of your examples is germane and is an exercise of pissin in the wind.”
That is always the way it works out when the evidence becomes overwhelming against you, you just revert to ad hominem attacks and baseless denials of the legal evidence. Sir Edward Coke and his statements in Calvin’s Case 1608 is case law precedent and clearly defines the differences between a subject-born and a subject-made that are the basis of the natural born citizen and the naturalized citizen, yet here you are denying them without a shred of credible evidence. Then you expect to have any credibility in the debate.
“The 14th Amendment “
The 14th Amendment has nothing whatsoever to do with natural born citizenship. The 14th Amendment can only authorize naturalization at birth and naturalization after birth, the 14th Amendment to the Constitution , and the Civil Rights Act of 1866 are all legislative acts and forms of Positive Law. The Supreme Court of the United States case law voided the Civil Rights Act for being unconstitutional, because it violated key parts of the Constitution without a proper Amendment of the Constitution. That is when the 14th Amendment was enacted to make the Civil Rights Act of 1866 a Constitutional act. Likewise, the Constitution and the Congress lack the power and authority to legislate definitions for Natural Law that predates the United States and the Constitution back into the prehistoric ages of mankind. Natural born citizenship is a branch of Natural Law, which is beyond and outside the jurisdiction and powers of Positive Law.
bfl
No man, I never meant your legal examples were not factual, they are just not pertaining to the Constitution’s NBC requirement, which has never yet been defined per the US Constitution. There are only two chances they will ever be defined, slim and none.
If today's legal system conceded original intent as binding in this clause, it would set a precedent that original intent is binding in other clauses. It would overthrow the legal theories that are the basis of every accredited law school.
It might be interesting to see if someone is clever enough to disqualify Cruz without resort to original intent.
Current law backs two ways to citizenship, natural or naturalized. There is no third way such as NBC.
Because NBC is only concerning election to POTUS, original intent is everything. Only the SCOTUS can say what original intent was and they won’t touch it with a ten foot pole.
If it ever MUST be clarified, it will take an Amendment to the Constitution. Will never happen.
I think that the Founders put in NBC to keep a Loyalist or similar from slipping in early in our history when a British subject might get in and declare us back in with the King.
The Founders never saw any need to specify NBC, they knew what it meant, they knew who was and who wasn’t NBC. Once that Generation was gone they must have figured ‘we needed to play some part’ in deciding the need of, the meaning of or enforcing NBC.
As long as there was or is a clear cut case, such as a truly foreign born person of no USA connection, there was no real need to be concerned. After a bit, NBC became legally complicated by the legal concept of Standing and another part of the Constitution saying that once a POTUS is sworn in he is President, period.
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