Why is the natural born citizen requirement important?

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question is because there are many out there who don't think we should even have this requirement anymore, that it's outdated, outmoded, and completely out of step with our modern, immigrant-soaked society.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 â€“ 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 â€“ as we have abundantly seen in recent decades, but especially in the last seven years â€“ 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.

"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 â€“ 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 â€“ 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 â€“ 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 â€“ born here on US soil â€“ 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.

I will repost something I posted the other day on this:

The problem with folks who try to rely on Vattel’s NBC definition drawn from natural law is that Vattel went on to state that each nation typically enacts some form of positive law (which can, in context, refer to common law, since it is basically just made up of accumulated jurisprudence) which more or less overrules the natural law interpretation.
Most people don’t know that.

However, jurists who actually relied upon common law pretty clearly state that natural born citizenship descends from place of birth. For instance, Blackstone unambiguously defined a NBC as “such as are born within the dominions of the crown of England,” while “those who are born out of it” are aliens.

James Madison wrote in a letter dated May 22, 1789,

“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.”

So first of all, you want the Founders’ intent - THAT is a pretty good indicator of it, since Madison was a major author and propagandist for the new Constitution, and presumably knew what it’s provisions meant to those who wrote them.

Zephaniah Swift, in his 1810 work A System of the Laws of the State of Connecticut wrote,

“Ã¢â‚¬Å“It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection...

“The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.Ã¢â‚¬Â

St. George Tucker wrote in 1803 in his commentary on Blackstone,

“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.’”

In his Commentaries on American Law, James Kent, the “father of American Jurisprudence,” defined a native-born citizen (which was used by pretty much all writers synonymously with “natural born citizen”) as,

“Natives are all persons born within the jurisdiction and allegiance of the United States.”

In William Rawles’ 1829 work A View of the Constitution, he wrote,

“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...Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.”

Supreme Court Justice Joseph Story, in 1840 wrote in his A Familiar Exposition of the Constitution of the United States using the same definition of “native citizen” as used by Rawles and Tucker,

“It is not too much to say, that no one, but a native citizen, ought ordinarily to be intrusted sic with an office so vital to the safety and liberties of the people.”

Earlier, in his opinion in the 1830 case Inglis v. The Trustees of SailorÃ¢â‚¬â„¢s Snug Harbor, Story wrote,

“Now, 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 ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and, consequently, owe obedience or allegiance to, the sovereign, as such, de facto.”

See also the 1844 case in the New York Court of Chancery Lynch v. Clarke in which the court explicitly stated that natural born citizenship derived from place of birth, AND that this finding is quite in line with English common law, upon which every state’s (except Louisiana) laws, as well as the Constitution, are rooted.

We should also note the simple fact that the 14th amendment as affirmed by several cases postdating, including but certainly not limited to the Wong Kim Ark case, also makes the distinction been those who are born in the USA and those who are naturalised - the former are NBCs, the latter are not.

Another good resources - The Natural Born Citizen Clause as Originally Understood

QUITE clearly, natural born citizenship depends on place of birth in our common law system, not on Vattel’s (non)argument for parentage.

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