Posted on 02/05/2016 8:15:25 AM PST by Yashcheritsiy
A lot of sound and fury has been generated in the past month concerning the natural born citizenship requirement found in the Constitution as a requirement for holding the office of the presidency. The issue has been around since Obama's first run for that office, though it was largely ignored at the time by the media and the political establishment. More recently, Donald Trump stumbled (quite by accident, I presume) into actually mentioning the Constitution when he raised the issue with regard to his competitor for the nomination, Ted Cruz.
Now, the purpose of this present essay is not to rehash all the arguments for or against either Barack Obama or Ted Cruz being natural born citizens. Likewise, I do not intend to cover in great detail what exactly is a "natural born citizen," other than to note that the general run of the historical arguments that I have seen, from earlier English common law down to Blackstone and then through the statements of our own American jurists and commentarians, seems to be that the primary issue concerned with natural born citizenship is that of the place of birth, what is termed jus soli, or "law of the soil." There is a strain, represented best by Vattel, but also found within American legal thinking, that also includes the citizenship of the parents when deciding who is natural born, but that seems to be a secondary and minority opinion among the early jurists and statesmen, many of whom were alive and flourishing at the time of the Founding.
My concern at present is to investigate why we have this requirement in the first place. What is the point to it? Is it something we should be spending so much time and energy discussing, and if so, why is that the case? The reason for asking this question is because there are many out there who don't think we should even have this requirement anymore, that it's outdated, outmoded, and completely out of step with our modern, immigrant-soaked society.
To begin looking at this, let's first examine what the role of the president in our government was (and is) supposed to be. Essentially, when you boil down what Article II of the Constitution says about the presidency, you see three general areas of competency – acting as a check on the other branches through the veto and judicial nomination powers, molding American foreign policy through the treaty-making role, and serving as commander-in-chief of the armed forces.
Needless to say, each of these roles is quite important, and the abuse of them – as we have abundantly seen in recent decades, but especially in the last seven years – can cause a great deal of harm to this nation. The Founders and the generations immediately following well-understood that the safety and prosperity of America depended on ensuring that our leadership was devoted to the United States and did not have divided loyalties.
In 1803, St. George Tucker stated,
"That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence..."
James Kent, the "father of American jurisprudence," observed in his Commentaries,
"The Constitution requires (a) that the President shall be a natural born citizen, or a citizen of the United States at the time of the adoption of the Constitution, and that he shall have attained to the age of thirty-five years, and shall have been fourteen years a resident within the United States. Considering the greatness of the trust, and that this department is the ultimately efficient executive power in government, these restrictions will not appear altogether useless or unimportant. As the President is required to be a native citizen of the United States, ambitious foreigners cannot intrigue for the office, and the qualification of birth cuts off all those inducements from abroad to corruption, negotiation, and war, which have frequently and fatally harassed the elective monarchies of Germany and Poland, as well as the pontificate at Rome."
Supreme Court Justice Joseph Story wrote in 1840 in his own commentary on the Constitution,
"It is not too much to say, that no one, but a native citizen, ought ordinarily to be intrusted with an office so vital to the safety and liberties of the people."
The reasoning behind the natural born citizenship requirement is obvious – it was designed as a means of preventing foreign influence from taking root at the highest level of the Republic's government, in the office in which subversion could wreak the greatest damage. While it would be deleterious for one or a few congressmen to be subverted by a foreign power, prince, or ideology (such as is, for example, Rep. Keith Ellison from Michigan), and while the corruption of a justice of the Supreme Court would have far reaching effects, none would be as dangerous as putting the command of the military and the power to make treaties with foreign nations into the hands of one who was in the service of a foreign power, especially a hostile one.
We should recognize that, no matter how sincere an immigrant to this nation may be in their affections for this country, nevertheless, they still have divided loyalties. In many, many cases, their families are still home in the "old country." They often send money and information about America back to their native lands. Most importantly (and quite naturally – I am not condemning them for this at all), a piece of their heart is still often with the land of their nativity. My personal experience is that in nearly all cases of immigrants to America that I have known, they sooner or later will refer to their old homeland with "...in my country..." There is still a divided loyalty – which is to be naturally expected.
This is why a positive affirmation of the wisdom of and need for the natural born citizenship clause as a requirement for eligibility to be the president is even more important now than it ever was. With so many people from so many places around the world, there is a weltering pot of divided loyalties to every place on earth. As the object of immigration is (or at least should be) to increase the prosperity and strength of the Republic by allowing those who will be beneficial to us to join our body politic, it only makes sense that the highest office would be withheld from first-generation immigrants, while their natural born citizen children – born here on US soil – would be as eligible as the scion of a family of Blue Bloods. In a sense, immigrants are "proving themselves" to have an enduring loyalty to this land by setting down their roots and truly making this their home, and that for the generations following them.
We also would be wise to strengthen, rather than dismiss, our fidelity to this requirement because of the fact that in our globalized, shrunken world, there are simply so many more foreign actors out there with whom our nation comes into contact, a proportional number of whom will necessarily be hostile to our nation, for one reason or another. There are a couple of hundred official nation-states, dozens of competing ideologies, and even non-state actors who would love the opportunity to influence, or even control, American foreign and military policy.
The best way to ensure that this doesn't happen is to scrupulously guard the natural born citizenship of those we elect to this highest office in the Republic. We've already seen the damage that a president with foreign ties and dubious loyalties to the United States can wreak, even should he be a natural born citizen. All the more reason to increase our vigilance to reassert this necessary and wise requirement and to raise it back to its former sanctity in our governing system.
Conservatives in this country have lost the majority of their rights by accepting the same sort of unConstitutional incrementalism when it suited them only to have it come back and haunt them, so, keep up the good work.
It’s only applicable to Republicans, Libertarians and Independents. Democrats are exempt from such restrictive constitutional requirements. God help our once great country.
Unfortunately, the founding fathers didn’t spell this out. Despite what Cruz says about the subject, it has never been tested I n the courts and even if it is, there is nothing in the Constitution that defines it one way or the other. My guess is it will never be ruled on by the Supreme Court and any U.S. Citizen will still be allowed to run and be elected as President.
Because 0bama.
When I was a kid I seem to remember the requirement that a person had to be born 2nd or 3rd (not sure) to be President. Does anyone remember that?
Ted Cruz being on the ballot in Illinois a bastion of liberalism for pete sake, was challenged. Claiming he isn’t eligible because not a NBC.
Well, of course he is, yashcheritsy, and all of it has been looked into and parsed to a fare the well.
Preponderance of evidence looked at by legal beagles for years and vast preponderance agree that the child of an American citizen who happens to be birthed while that citizen is another country is a citizen at birth. They do not need to renounce any other citizenship, they do not need to go through a naturalization process.
They are born, they are an American.
I knew all of what is now known about Ted Cruz when I supported him for Texas’ junior Senator. I knew THEN I was voting in an American to office to represent me. Yet here you are years later and he’s running for POTUS and you still pedal that he’s not an American.
Oh, almost forgot, the Illinois court has ruled him eligible for the ballot there and yes, he fits the qualification of NBC.
Parrot your line until the cows come home as we sometimes say in Texas.
He still is, and you’re still wrong.
“to be born 2nd or 3rd “
generation
BULL CHEESE.
Purists can strictly abide by the Constitution if they like and kick Cruz and Rubio to the door.
If they like.
And as they do - the OPEN the door to Hillary or Sanders.
So tell me again how the NBC requirement is that important?
Since everyone who was a citizen at the time of adoption is dead, we can remove the grandfather clause wording. We are left with:
“No Person except a natural born Citizen [...] shall be eligible to the Office of President;”
Why does the Constitution speak of “citizens” and separately of “natural born citizens”? Why is the word “natural” inserted? It is a matter of allegiance.
A person can be a “citizen” if he or she was a citizen or subject in some other country first but came here and met the naturalization requirements. Also, if one is the offspring of a citizen and a non-citizen, then one is a US citizen. However, in both these cases it can be argued that the person might choose allegiance to his former country or to the country of the foreign-born parent or at least the allegiance might be considered divided. That is, there is no natural allegiance of the offspring to one or the other parent’s country. After all, a child of a US citizen and a citizen of another country is just as much a citizen of either. It is this divided or alienated allegiance that the Constitutional provision is designed to prohibit.
If, however, both of one’s parents are themselves US citizens, then one is a “citizen” as well as a “natural born citizen”. The “natural born citizen” is one who at birth has no natural allegiance to any other country and the Framers felt could be trusted to be loyal to the US and not act as a foreign agent. [footnote: Also, in their time, the rules of royal succession held sway throughout much of the world and the Founders wished to forestall any potential claims by the crowned heads of Europe or their scions to sovereignty over the US.]
Note that native born is not the same as natural born. Native born simply refers to the place of one’s birth, i.e., of one’s nativity. The term does not speak to the legal circumstances of a birth, merely to its location.
It is incomprehensible to me why the framers would have inserted the language: “Natural born citizen” unless they intended it to mean born on the soil of the newly born nation.
Can anyone seriously contend they meant to include people born in the British Empire (Canada)—which was still our most dangerous enemy, in that brief lull between The War of Independence and the War of 1812 (when the Brits burned Washington) under ANY CIRCUMSTANCES?
Cruz’s argument now is so hypocritical as to be laughable. It speaks volumes about his character that he can forget all his alleged constitutional principles for the sake of personal ambition.
Correct. It’s not a mere technicality. IMHO, the core issue facing this country at this time is whether or not we’ll even have a country at all. The Presidency is a key piece of that. And no, Cruz is not eligible.
He is naturally born.
If not, tell me at what point in his life Cruz had to become naturalized?
I will save you the trouble, he never did.
The Founding Fathers wanted someone who was culturally AMERICAN, raised as an American.
Obama, no matter where he was born, is culturally Indonesian moslem, imbued with those ideas in his formative years.
Ping for later...
Rep. John A. Bingham commenting on Section 1992 of U.S. Revised Statutes (1866) said:
it means every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.
John A. Bingham (Cong. Globe, 39th, 1st Sess., 1291 (1866))
John Armor Bingham (January 21, 1815-March 19, 1900) was an American Republican congressman from the U.S. state of Ohio, judge advocate in the trial of the Abraham Lincoln assassination and a prosecutor in the impeachment trials of Andrew Johnson. He is also the principal framer of the Fourteenth Amendment to the United States Constitution.
The first section of the second article of the Constitution uses the language, a natural-born citizen. It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.
Justice Curtis in his dissenting opinion of the Dred Scott decision and speaking specifically of natural born citizens and article II, section I, clause 5
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 doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.
Kilham v. Ward 2 Mass. 236, 26 (1806)
As the President is required to be a native citizen of the United States. Natives are all persons born within the jurisdiction and allegiance of the United States.
James Kent, COMMENTARIES ON AMERICAN LAW (1826)
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence, A very respectable political writer makes the following pertinent remarks upon this subject. Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it.
St. George Tucker, BLACKSTONE'S COMMENTARIES (1803)
Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign.That the father and mother of the demandant were British born subjects is admitted. If he was born before 4 July, 1776, it is as clear that he was born a British subject. If he was born after 4 July, 1776, and before 15 September, 1776 [the date the British occupied New York], he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.
Justice Story, concurring opinion,Inglis v. Sailorsâ Snug Harbor, 3 Pet. 99, 155,164. (1830)
The country where one is born, how accidental soever his birth in that place may have been, and although his parents belong to another country, is that to which he owes allegiance. Hence the expression natural born subject or citizen, & all the relations thereout growing. To this there are but few exceptions, and they are mostly introduced by statutes and treaty regulations, such as the children of seamen and ambassadors born abroad, and the like.
Leake v. Gilchrist, 13 N.C. 73 (N.C. 1829)
Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.
William Rawle, A View of the Constitution of the United States, pg. 86 (1829)
The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle
Horace Binney, American Law Register, 2 Amer.Law Reg.193, 203, 204, 206, 208 (February 1854).
That all natural born citizens, or persons born within the limits of the United States, and all aliens subject to the restrictions hereinafter mentioned, may inherit real estate and make their pedigree by descent from any ancestor lineal or collateral.
January 28, 1838, Acts of the State of Tennessee passed at the General Assembly, pg. 266 (1838)
The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.
Lynch vs. Clarke (NY 1844)
Every person, then, born in the country, and that shall have attained the age of thirty-five years, and been fourteen years a resident within the United States, is eligible to the office of president.
Lysander Spooner, The Unconstitionality of Slavery, pg. 119 (1845)
It is the very essence of the condition of a natural born citizen, of one who is a member of the state by birth within and under it, that his rights are not derived from the mere will of the state.
The New Englander, Vol. III, pg. 434 (1845)
This is called becoming naturalized; that is, becoming entitled to all the rights and privileges of natural born citizens, or citizens born in this country.
Andrew White Young, First lessons in Civil Government, pg. 82 (1856).
The Constitution itself does not make the citizens, (it is. in fact,made by them.) It only intends and recognizes such of them as are naturalâ€â€home-bornâ€â€and provides for the naturalization of such of them as were alienâ€â€foreign-bornâ€â€making the latter, as far as nature will allow, like the former.
Attorney General Bates, Opinion of Citizenship, (1862)
All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.
Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)
Natural-born Citizens, those that are born within the jurisdiction of a national government; i.e., in its territorial limits, or those born of citizens, temporarily residing abroad.
William Cox Cochran, The student's law lexicon: a dictionary of legal words and phrases : with appendices, Pg. 185 (1888)
Citizens are either natural-born or naturalized. One who is born in the United States or under its jurisdiction is a natural-born citizen without reference to the nationality of his parents. Their presence here constitutes a temporary allegiance, sufficient to make a child a citizen.
Theodore Dwight, Edward Dwight, Commentaries on the law of persons and personal property, pg. 125 (1894)
The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle.
Binney on Alienigenae, 14, 20; 2 Amer.Law Reg.199, 203
Instead of going on and on and on and on about this on the internet, why doesn’t somebody take it to court? If they can even find one that will waste their time on this.
The Constitution didn’t provide a specific definition.
Congress is authorized by the Constitution to determine immigration and citizenship requirements. Using the applicable statute at the time of Cruz’s birth he is a NBC.
It is a convenient diversion when a candidate is unable to debate the policies and principles with a political opponent.
Obama proves the rule.
You had to be named Trey.
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