I posted this a week ago in response to one of your categorical statements regarding what you believe (despite no evidence) is the meaning of “natural-born citizen” in the Constitution.
With all due respect, that only those who are born in America and both of whose parents were U.S. citizens at the time of his birth can be deemed to be natural-born citizens is not, and has never been, the prevailing interpretation of the natural-born citizen clause. A natural-born citizen of the United States is one who has been a U.S. citizen since birth (a citizen at birth pursuant to the laws at the time of his birth); the term is used in contradistinction to a naturalized citizen, who became a U.S. citizen sometime after birth.
The confusion stems from the fact that, under 18th century British law, persons born in Great Britain whose parents were not citizens would not be British subjects at birth (Britain had jus sanguinis to the exclusion of jus soli). But in the United States, Congress adopted as early as 1791 two ways for persons to be U.S. citizens at birth—being born in the U.S. (jus soli), or being born abroad of U.S.-citizen parents (jus sanguinis). Jus soli was later enshrined in Section 1 of the 14th Amendment, which declared all persons born in the U.S., and subject to the jurisdiction thereof, to be citizens at birth. Had the U.S. never adopted laws regarding U.S. citizenship, then the common law would have been applied and the U.S. only would have jus sanguinis. But the common law only is in effect in the absence of a statute, and Congress decided to supercede the common law in that instance. The U.S. Constitution and laws passed by Congress, not British legal traditions, are the Supreme Law of the Land.
Another misunderstanding has occurred due to a recent misreading of the 19th-century Minor case. The Minor case was about a woman claiming some right, and the Court first had to consider whether she was a cititen. The woman had been born in Iowa of citizen parents, and the opinion of the unanimous Supreme Court stated that, *at the very least*, a person born in the U.S. to citizen parents was a natural-born citizen (which does not mean that it means that and only that). The Court also wrote that the term natural-born citizen meant citizen at birth and was used in contradistinction to naturalized citizen.
And insisting that natural-born status required that both parents be citizens at the time the child was born was a fringe position even in the 19th century. When Chester Arthur ran for Vice President (which has the same NBC requirement as the presidency) in 1880, Democrats claimed that he had been born in Canada instead of northern Vermont, and some even claimed that he had been born in Ireland (where his father was from), had he been born abroad, with a father who was a British subject, he would not have been a U.S. citizen at birth and thus not eligible for the vice presidency. But you know what claim was *not* made by prominent Democrats? That the fact that his father was not a U.S. citizen at the time of Chester’s birth meant that Chester was not an NBC (his father became a naturalized citizen years after Chester was born).
The both-parents-must-be-citizens requirement was still a fringe position in 1916, when recently retired Supreme Court Justice Charles Evans Hughes was the Republican candidate for the presidency. Hughes’s father was Scottish, and it was undisputed that he was a British subject (and not a U.S. citizen) when Charles was born. Yet no Republican objected to his nomination, and, as far as I know, only one prominent Democrat rose in opposition on constitutional grounds, penning a well written, but entirely unconvincing, argument about the both-parents-must-be-citizens requirement. His main evidence was how some letters from U.S. consular officers to Americans with French parents warning them that, if they moved to France, France might draft them into military service *because they were French citizens under French law*, somehow “proved” that such persons weren’t U.S. citizens at birth (when all it meant was that U.S. law is valid in the U.S. and French law is valid in France). And if that argument proved anything, it proved too much; if Italy or Germany claimed that the grandchildren of Italians or Germany were Italian or German citizens, would that mean that someone born in the U.S. with two U.S.-citizen parents wouldn’t be a NBC due to a foreign government’s claims? Is Italian or German law the Supreme Law of the Land in America, having precedence over U.S. law and our Constitution? In any event, no state kept Hughes off the ballot, and Congress counted each of Hughes’s 250+ electoral votes (he came within less than 1% of carrying California, which would have given him the victory over President Wilson).
Which brings us to 2008. For years, it had been an undisputed that Barack Obama’s father never was a U.S. citizen, which, had the both-parents position been the prevailing interpretation of the NBC Clause, would have meant that Obama was ineligible for the presidency. But you did *not* see prominent constitutional scholars or jurists step forward to argue that position. Only when circumstantial evidence pointing to Obama having been born abroad—which, given federal law in 1961, would have meant that he was not a U.S. citizen at birth—did his possible disqualification become an issue. When some plaintiffs later claimed that he was unqualified because his father was not a citizen, the claim was laughed out of court, and no state even considered keeping him off the ballot because of his father not being a citizen—the only serious controversy was that it wasn’t clear whether Obama had been born in Hawaii or abroad, and had he been born abroad them he would not be a NBC under U.S. law at the time of his birth. In the end, Congress counted every one of his EVs, with no objections from any members of either party based on his father’s non-citizenship.
So, given this history, you believe that Republicans unilaterally should disarm and apply, for the first time ever, a fringe interpretation of the NBC Clause so as to disqualify Marco Rubio (and Bobby Jindal, and maybe Ted Cruz?) from the presidency? I will defend your right to say that Marco Rubio would make a bad president, or that he isn’t good on the issues, or that he is untested, or that he would lose the election—while I can’t say that I agree with any of those positions, reasonable minds may disagree—but I will not engage in unilateral disarmament based on a legal theory that is disrespectful to U.S. sovereignty (giving foreign law precedence over U.S. law) and which has been rejected again and again by our judicial and political institutions for well over a century.
“With all due respect, that only those who are born in America and both of whose parents were U.S. citizens at the time of his birth can be deemed to be natural-born citizens is not, and has never been, the prevailing interpretation of the natural-born citizen clause.”
James Madison wrote the U.S.Constitution. As President, it was his administration’s official position that ONLY those born to U.S. citizen parents could be U.S. citizens themselves.
The following is often used to support people like Rubio who seek to be President, but it was superceded centuries ago and is a false argument.
“The First U.S. Congress included in the 1790 Immigration & Naturalization Act language to alert the State Department to the fact that Americans born abroad are “natural born” citizens” and are not to be viewed as foreigners due to foreign birth. They were not granted citizenship via that US statute, rather their automatic citizenship was stated as a fact that must be recognized by immigration authorities. They were not citizens by any other means than natural law, and statutory law was written to insure that their natural citizenship was recognized.”
This is not a reasonable explanation. It fails to recognize that Congress only has powers over naturalization. Congress has no power to define “natural born Citizen”, which has nothing to do with naturalization. Furthermore, if Congress wants to tell the State Department something, they don’t have to enact legislation to do it.
But more important is that all of the following naturalization acts, 1795, 1802, etc., were also passed to naturalize the children of U.S. citizens born abroad. And the words “natural born” were repealed in the 1795 Naturalization Act and never returned again.
Natural born Citizen is a class of citizens born in the United States (jus solis) of Citizen parents (jus sanguinus).
This has been the legal definition of natural born citizen, per Minor v. Happerset, since 1875.
As for Chester A. Arthur, usurper President, he knew he wasn’t eligible and burned all his private papers to prevent that discovery later after his death. Ha! It didn’t work.
Truth is the daughter of time.