Is Rubio Eligible?

Fred Thmpson America ^ | 07.31.12 | Sen Fred Thompson

[Perdogg]

I would like to address an issue that is apparently of concern to a significant number of people. In my “Ask Fred” column, several people have expressed concern (some have been adamant and angry) that Marco Rubio should not be selected as the Vice Presidential nominee because he would not be eligible to be President, if the need arose. They contend that at least one of his parents were required at the time of his birth to have been a citizen for him to fulfill the constitutional requirement of eligibility, even though he was born on American soil.

[Kansas58]

“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.”

James Madison, The Founders’ Constitution Volume 2, Article 1, Section 2, Clause 2, Document 6 (1789)

[GregNH]

““you say we must have a law to prevent what you do not want.”

Please quote me!

[Kansas58]

Go back and read what YOU posted.

You list the possible horrors of who we might elect, if not for YOUR weird legal theory.

However, horror stories and fear do not establish law.

Ted Bundy could be President.

That does not mean we would vote for him!

[Kansas58]

““Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen of the United States in the sense of the Constitution…Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance of the King; and aliens are such as are born out of it.” …… “It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, ‘founded in reason and the nature of government’ … The English Law made no distinction … in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward.” ‘

Rep. Wilson, 1866 Civil Rights Act debates. 10 Cong. Globe, 39th Cong., lst Sess. 1115, 1117 (1866)

[DiogenesLamp]

Children of legally resident aliens are natural born citizens.

There are two schools of thought on this of which I am aware. There are those that Hold Wong Kim Ark is correct, and that it was the intent of the Congress and the 3/4ths of state legislatures that anyone born to a legal resident can claim U.S. Citizenship. (Note, not the same thing as "natural citizenship.)

There are those who claim Wong Kim Ark was decided incorrectly, and that it's decision is in actual contradiction with the meaning and intent of the 14th Amendment. This group holds that The Congress did not intend to create an amendment that gives citizenship to the children of foreign transients. (Anchor Babies.)

In either case, regardless of whatever interpretation of Wong Kim Ark and the 14th Amendment is used, none of these interpretations claim that citizens by action of the 14th Amendment are "natural citizens."

The Waite Court in Minor v Happersett expressly contradicts the notion that the 14th amendment declares "natural citizen" status.

The Constitution does not, in words, say who shall be natural-born citizens.

If the 14th amendment created "natural citizens" the Waite court would not say the constitution was silent on the issue, it would say "Oh Yes it does!"

I do not think most people understand the significance of this. The Court in 1875 would have had a far better understanding of what "natural born citizen" meant than would later subsequent courts, and yet fresh off the creation of the 14th amendment it could not find one there. It had to resort to a different standard.

Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.

The Fact that the Waite court did not and could not find "natural citizen" in the 14th amendment, indicates that the Gray Court did not find such a thing in there either, but people have ever since misapplied the ruling of "citizen" to mean the same thing as "natural born citizen."

[nonsporting]

Next, in the case I spoke of, Madison clearly states that the CONGRESS has the power to determine who qualifies as a Citizen at Birth. There are two types of Citizenship: Natural Born, or Naturalized. There are no other forms.

Madison is dead. He is sorely missed. But no matter, only the Constitution states what powers CONGRESS has.

As to you other red herring, it doesn't matter how many forms of citizenship there are. As a qualification for president, only "natural-born" citizens are eligible to hold this office. One must also be 35 years of age.

A [valid] birth certificate will establish one's eligibility for this office.

[DiogenesLamp]

Since it will be ruled legal, it will be moot. If he runs, there will be no recourse in the courts, because the law is what it is, and he’ll not be obstructed. There will be a few complaints, but no legal challenge will be able to get off the ground based on what someone thinks the constitution originally meant.

That does not mean we should tacitly acquiesce to a re-write of History. I want the History books to have an asterisk by the name Obama. ( * Not a legitimate President.) The fight is bigger than just one legal issue. Everything the man has done needs to be looked upon as having the taint of illegitimacy.

[DiogenesLamp]

I’m not going to bother with you or your points. Responding to you is not worth my time.

[DiogenesLamp]

You're on a roll Diogenes. You make some excellent cogent points above.

Thank you! I was actually rather proud of a few of my turns of phrase. As Mark Twain said, "The difference between the almost right word and the right word is really a large matter - it's the difference between the lightning bug and the lightning."

I keep thinking that if the concept is expressed simply enough, people will go "Ah!" And a light bulb will come on.

[Ray76]

As a point of interest, Jefferson used “inalienable” in the Declaration of Independence

Jefferson’s copy
http://memory.loc.gov/master/mss/mjm/27/0700/0743.jpg

Jefferson’s rough draft
http://memory.loc.gov/master/mss/mtj/mtj1/001/0500/0545.jpg

Both of which can be accessed through
http://www.loc.gov/rr/program/bib/ourdocs/DeclarInd.html
under the heading “The James Madison Papers” and “The Thomas Jefferson Papers at the Library of Congress”

The engrossed version uses “unalienable”

[DiogenesLamp]

No doubt. Thanks for dropping in on this thread, DL.

You're welcome. Thanks for the heads up. Haven't had this much fun in awhile. :)

Any logical discussion of what the Founders meant by Natural Born Citizen should start with the simple question: "What is the purpose of the NBC language in Article 2, Section 1, Clause 5 of the Constitution?"

If the answer is "To ensure, to the greatest degree possible, the presumed undivided loyalty of one entrusted with the awesome power of the Executive" then the conclusion becomes as simple as it is inevitable: A NBC is a citizen born of parents who are also citizens.

I would say that our opponents want to start with what the latest courts say, and work their way backwards, but they don't. They just want to stop at what the latest court says without wondering if it is actually correct.

Enlightenment is not their goal.

[DiogenesLamp]

There is not a court in the US that agrees with you.

Well absolutely! Given the current lack of sanity in our court system, I find it reassuring that they don't agree!

[DiogenesLamp]

You are a citizen one of two ways, naturalized or “natural born”.

Where do you get this from? Tell me, what were Indians prior to the Indian Citizenship act of 1924? Were they "naturalized" or "natural born"? Explain how you arrived at your conclusion for whatever status you grant them.

If you are born of the realm, you are a natural born citizen unless you are born of other heads of state, ambassador, foreign occupiers, etc.

Or if you were born as the Child of a British Loyalist after the Revolutionary War, or if you were born the Child of a slave prior to the 14th Amendment, or if you were born to an Indian prior to 1924, or if you were the foreign born Child of an American Woman who was married to a foreigner.

Funny.... It took subsequent laws to make these natural citizens into citizens. Why for it took laws to make something "natural"? If we pass a law, can we turn a dog into a sheep? I don't mind eating sheep, but I wouldn't want to eat a dog.

Children who are born in England to US military personal are also nbC since they are born of “the Realm”.

If I am born in a barn, does that make me a cow? What if I am born in Orbit? Am I American if I emerge over the U.S. or am I Russian if I emerge over Russia? I suppose a woman would really need to time her pushes just right.

I happen to agree with you that the Children of Military personnel are "natural born citizens" regardless of where they are born. Where stand our fighting men, there America is also. Vattel also agrees with this principle. It is just common sense.

[DiogenesLamp]

all that his historically amusing but legally inapplicable.

Immigration law keeps changing and has change multiple times since the founding. Immigration law used to be up to the states. We now even have regionial quotas.

You are missing the point. A "natural" citizen is not created by law. The condition of being a "natural" citizen is inherent in their nature, like hair or eye color.

You can't make a law to declare something "natural." (Well, you can, but it makes as much sense as a law to declare that a dog is a sheep.)

I will point out that the U.S. Constitution says that Congress shall have the power to "naturalize" citizens. "Naturalize" means to "make like natural". Just as an Adoption makes an unrelated child a member of a family, so does "naturalization" make citizens out of non-citizens.

But let us not fool ourselves into believing that "naturalized" citizens are the same thing as "natural" citizens.

[DiogenesLamp]

You stepped into a trap, all of you, and you don't realize it.

Yes, we looked at a thread of which you were a part. Just stop! You're killing me! I'm falling out of my chair laughing...

[Kansas58]

Madison WROTE the Constitution.

Madison is an authority, then, on “original intent” don’t you think?

Madison says, clearly, that Congress can change the rules for birthright citizenship.

[Kansas58]

Have you ever won, in a Court Room?

I have, nearly a dozen times, on all types of cases, and I am not even an attorney.

You are not very good at legal matters.

In fact, you kind of suck at this.

[DiogenesLamp]

As a point of interest, Jefferson used “inalienable” in the Declaration of Independence

Original draft or rewrite? Jefferson's initial work was considered too inflammatory by the other founders, and they stripped some of the objectionable language out of it. Jefferson always resented this and proceeded to show his original version to any visitors who happened to stay at his house, urging them to chose which of the manuscripts they thought better.

[Kansas58]

“It were to be wished, that we had some law adduced, more precisely defining the qualities of acitizen or an alien; particular laws of this kind have obtained in some of the States; if such a lawexisted in South Carolina, it might have prevented this question from ever coming before us; butsince this has not been the case, let us settle some general principle before we proceed to the presumptive proof arising from public measures under the law, which tend to give support to theinference drawn from such principles.It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its forcesometimes from place, and sometimes from parentage; but, in general, place is the most certaincriterion; it is what applies in the United States; it will, therefore, be unnecessary to investigateany other. Mr. SMITH founds his claim upon his birthright; his ancestors were among the firstsettlers of that colony.”

http://www.scribd.com/doc/79655719/James-Madison-on-Contested-Election-Citizenship-And-Birthright-22-May-1789-House-of-Representatives

[Red Steel]

"Supreme Court cases that cite “natural born Citizen” as one born on U.S. soil to citizen parents:

 

The Venus, 12 U.S. 8 Cranch 253 253 (1814)

 

Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says: “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.

 

Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)

 

Ann Scott was born in South Carolina before the American revolution, and her father adhered to the American cause and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the Revolution and afterwards, remained in South Carolina until December, 1782. Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country. Her citizenship, then, being prima facie established, and indeed this is admitted in the pleadings, has it ever been lost, or was it lost before the death of her father, so that the estate in question was, upon the descent cast, incapable of vesting in her? Upon the facts stated, it appears to us that it was not lost and that she was capable of taking it at the time of the descent cast.

 

Dred Scott v. Sandford, 60 U.S. 393 (1857)

 

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.' Again: 'I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .

 

Minor v. Happersett , 88 U.S. 162 (1875)

 

The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.

 

United States v. Wong Kim Ark, 169 U.S. 649 (1898)

 

At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.

 

Perkins v. Elg, 307 U.S. 325 (1939),

was a decision by the Supreme Court of the United States that a child born in the United States to naturalized parents on U.S. soil is a natural born citizen and that the child's natural born citizenship is not lost if the child is taken to and raised in the country of the parents' origin, provided that upon attaining the age of majority, the child elects to retain U.S. citizenship "and to return to the United States to assume its duties." Not only did the court rule that she did not lose her native born Citizenship but it upheld the lower courts decision that she is a "natural born Citizen of the United States" because she was born in the USA to two naturalized U.S. Citizens.

"But the Secretary of State, according to the allegation of the bill of complaint, had refused to issue a passport to Miss Elg 'solely on the ground that she had lost her native born American citizenship.' The court below, properly recognizing the existence of an actual controversy with the defendants [307 U.S. 325, 350] (Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 , 57 S.Ct. 461, 108 A.L.R. 1000), declared Miss Elg 'to be a natural born citizen of the United States' (99 F.2d 414) and we think that the decree should include the Secretary of State as well as the other defendants. The decree in that sense would in no way interfere with the exercise of the Secretary's discretion with respect to the issue of a passport but would simply preclude the denial of a passport on the sole ground that Miss Elg had lost her American citizenship."

The Supreme Court of the United States has never applied the term “natural born citizen” to any other category than “those born in the country of parents who are citizens thereof”. [SOURCE CREDIT"]