Birthers say Marco Rubio is not eligible to be president

Unable to prevent Barack Obama from becoming president, rigid followers of the Constitution have turned their attention to another young, charismatic politician many think could one day occupy the White House.

The birthers are calling for U.S.Sen. Marco Rubio, the budding Republican star from Florida.

"It's nothing to do with him personally. But you can't change the rules because you like a certain person. Then you have no rules," said New Jersey lawyer Mario Apuzzo.

Forget about allegedly Photoshopped birth certificates; the activists are not challenging whether Rubio was born in Miami. Rather, they say Rubio is ineligible under Article 2 of the Constitution, which says "no person except a natural born citizen … shall be eligible to the Office of President."

"It's a little confusing, but most scholars think it's a pretty unusual position for anyone to think the natural born citizen clause would exclude someone born in the U.S.," said Polly Price, a law professor at Emory University in Atlanta who specializes in immigration and citizenship.

Price said natural born was likely drawn from the concept that anyone born in what was once a colony was considered a subject and parental status was not a factor.

But there is sufficient muddiness to fuel the birthers, many still angry with the Republican establishment for not taking their case against Obama more seriously. Rubio was among them, saying he did not think it was an issue.

"The other shoe has dropped," conservative figure Alan Keyes said on a radio program last month. "Now you've got Republicans talking about Marco Rubio for president when it's obviously clear that he does not qualify. Regardless of party label, they don't care about Constitution. It's all just empty, lying lip service."

The words “natural-born citizen” mean “citizen at birth.”

The three individual words do, the collective term of art does not. I have long pointed out the mistake of interpreting it in accordance with the meaning of the individual words vs interpreting it in light of the origins of the term and it's context as used by the founders. In the same manner that "freedom of speech" and "freedom of press" goes way beyond just the meaning of those words, just so does the meaning of "natural born citizen" transcend the addition of words put together. In the context of article II, it means born as a "natural citizen."

In the absence of congressional statutes, who was a U.S. citizen at birth would be determined based on the common law.

Not trying to nitpick, but at the time of the Constitution's ratification, who would be a citizen was determined by each individual state and whatever happened to be their law on the subject. (Note, this particular law, written by Thomas Jefferson, denies citizenship to the children of aliens unless their parents become citizens.) In the absence of such laws, courts would harken back to "common law" as a matter of procedure, not necessarily because it was correct. Lynch v Clarke is an example of where the court did this, and the applicability of their ruling was subsequently overturned by the action of the New York Legislature. This particular sub-topic also highlights the difference between what is a citizen for the purpose of being a citizen of a state, and what is the requirement for being a citizen of the Nation itself. In 1787, there were no uniform requirements from state to state. Article II and the subsequent naturalization act of 1790 are the closest things of which I know to attempt to define it regarding Federal citizenship.

However, the common law is determinative only when the legislature has not adopted a specific statute on the subject matter.

But only because the Court system chooses to do it that way. It is another example of their habit of asserting "precedent" as opposed to first principles. Everyone must acknowledge that English laws regarding "subjects" were overturned in the two wars we fought with them over the issue. Why the courts insist on looking to laws regarding "subjects" which we through off in two wars, is simply because they were convenient "precedent."

In the 1790 statute, Congress provided that the foreign-born children of U.S. citizens were U.S. citizens at birth so long as the parents had resided in the U.S. at some point. While it is not clear who would be a U.S. citizen at birth under common law (the Happersett Court noted that some authorities maintained that the position that only the U.S.-born children of two U.S. citizens would be citizens at birth under common law was incorrect, and the Court did not rule on the matter, since it was unnecessary for the disposition of the case), since 1790 the foreign-born children of U.S. citizens (with certain limitations) have been citizens at birth, and since at least the adoption of the 14th Amendment all children born in the U.S. and “subject to the jurisdiction thereof” (which I believe should exclude children of illegal aliens, but all three branches of government understand to include even them) are U.S. citizens at birth.

If your "citizen at birth= natural born citizen" theory was correct, Aldo Mario Bellei would not have lost his citizenship for having failed to meet residency requirements. He was a "citizen at birth" but he was stripped of his citizenship. A "natural born citizen" or a "born" "natural citizen" (as I like to make it clearer) cannot be deprived of their citizenship for failing to meet residency requirements. Clearly there is not equivalence to "citizen at birth" and the meaning of born a "natural citizen."

If you don’t believe me that a U.S.-born child of two permanent residents is a citizen at birth, try to bring an application for naturalization for such a person and see what the courts say.

A point I constantly harp on is that "what the courts say" is not proof that something is true or not. The Courts got Roe v Wade wrong, they got Kelo v New London wrong, They got Wong Kim Ark Wrong, and it took them over two hundred years to get McDonald v Chicago right! That THEY don't even know what they are talking about is demonstrated by the fact that so many court decisions are split. If they can't even manage to find unanimity, how much faith should we put in the accuracy of their opinions?

Of course no act of Congress can change the words in the Constitution—only a constitutional amendment may do so. But that does not mean that we must interpret constitutional clauses as if the only laws applicable in the U.S. was the common law as understood in 1787. When the Constitution was written, filing false tax returns was not a crime under the laws of any state (there was no income tax), but sodomy was a felony in probably every state; today, the former is a federal felony and the latter is not a crime, if consensual, in any state (at least post-Lawrence).

You merely re-iterate what is wrong with our current governance. Sodomy laws were not repealed by State Legislators at the urging of their people, they were cast out by imperial judges bent on forcing their own opinions on the rest of the nation. Thomas Jefferson himself proposed changing the then existing penalty for Sodomy (DEATH.) to something he considered more humane. (Castration)

You pick a strange example in your attempt to engender respect for the court. It merely reminds me why they should be hurled out root and branch. In any case, I appreciate the fact that you have acknowledged that Congress cannot change the meaning of Constitutional terms through statute, but only through Amendment. If you could inform some of your lesser knowledgeable allies on this forum, I think it would be helpful to all concerned.

The original intent of the impeachment clause in the U.S. Constitution, which holds the President and other officers of the U.S. subject to impeachment for “high crimes and misdemeanors,” was to kick out (and make ineligible for future office) officers who commit serious crimes. The fact that changes in law result in that “high crimes” now inlude tax evasion and no longer include consensual sodomy does not mean that our political branches have changed what the phrase “high crimes” means; legislatures have merely adopted criminal statutes to fit what the people believe should be crimes nowadays and otherwise to reflect changes in our lives (no computer crimes were possible in 1787), and the acts included within the phrase “high crimes” has thus changed.

So you are suggesting that Congress can make a non "natural citizen" into a "natural citizen" by manipulating something or other? I would regard the Cable act of 1922 and the Women's citizenship act of 1934 as the closest thing I know of which could be regarded as an example of this, but under no stretch of imagination can I believe that either the 1922 congress, or the 1934 congress, wanted to re-write the eligibility requirements for President. That these laws have had an impact on it is simply the result of unintended consequences. Prior to either of these laws, Obama would be a full fledged Kenyan citizen, and in no part whatsoever would he be an American citizen.

The phrase “natural-born citizen” meant “citizen at birth” in 1787, and it means the same today; the terms are synonymous (”birthright citizen” is yet another synonym). Who is a citizen at birth, though, has changed at Congress has legislated on the subject matter. Congress did not change the original understanding or definition of “natural-born citizen” when it legislated in 1790 to make the foreign-born children of U.S. citizens natural-born citizens, or when it subsequently legislated to declare under what circumstances persons born within U.S. territory were citizens at birth (with the answer being “always, so long as they are subject to the jurisdiction of the U.S.). Congress has not changed the meaning of “natural-born citizen”; it has merely changed the laws of the U.S., which is the piwer that Article I of the Constitution vests in Congress.

I disagree that NBC means "born a citizen." As I have pointed out in my previous message, the case of Roger v Bellei disproves the notion that "born a citizen" = born a "natural citizen."

Given our disagreement on the meaning of “natural-born citizen,” I think that we are likely to continue to talk past each other in this debate, and will have to agree to disagree on the constitutional eligibility of a citizen at birth who does not have two citizen parents or who was not born in the U.S.

But I did want to point out that the law by which Bellei claimed U.S. citizenship did not provide that he was a birthright citizen ipso facto his birth to parents who had met certain citizenship and prior-residency requirements, but affirmatively imposed a future residency requirement for such person. It is true that a natural-born citizen—someone who is a citizen by the mere fact of his birth—would not need to reside anywhere in order to be treated as a citizen, but that is an argument for recognizing that persons like Bellei, who needed to act affirmatively in order to continue to be treated as a U.S. citizen, were not natural-born citizens, and is not an argument for saying that persons who are U.S. citizens at birth without having to meet any future conditions are not natural-born citizens. So I would say that Bellei wouldn’t qualify as president even if he resided in the U.S. from the time he was a week old, since his citizenship didn’t really “vest” until some event took place after his birth. (And please note that the future residency requirement was a requirement to being recognized as a citizen henceforth, not merely a ministerial requirement for providing evidence of birth as a condition to being treated as a citizen, which requirement could be complied with through other means and failure to so comply would not cause the person to be stripped of his U.S. citizenship.)

Oh, and I meant to comment on your point on how sodomy laws were struck down by activist courts, not voted down by the people or their representatives. You are correct with respect to the states that still had sodomy statutes at the time of Lawrence, although it is also true that many states had already repealed their sodomy statutes prior to Lawrence. My point remains, though, that something needs to be a “high crime or misdemeanor” today, not in 1787, for it to be an impeachable offense, and that interpreting phrases whose definitions were not meant to be frozen in time does not constitute an amendment to the Constitution. (I should have also noted that there was no Secretary of Energy in 1787, so the term “civil officers of the United States” did not include the Secretary of Energy back then, yet such officer clearly is subject to impeachment nowadays, since Congress may legislate to expand the list of “civil officers of the United States” without it being a subversion of the impeachment clause.)

That is a shame, because your responses seem knowledgeable and reasonable.

If I recall correctly, the court ruled him a citizen at birth by "statute", and regarded it as well within the power of congress which created the statute that granted him his citizenship, the authority to put residency requirements on it. I merely use the example of Bellei to point out that you can be "born" a citizen, but that alone does not make you born as a "natural citizen."

It is true that a natural-born citizen—someone who is a citizen by the mere fact of his birth—would not need to reside anywhere in order to be treated as a citizen, but that is an argument for recognizing that persons like Bellei, who needed to act affirmatively in order to continue to be treated as a U.S. citizen, were not natural-born citizens, and is not an argument for saying that persons who are U.S. citizens at birth without having to meet any future conditions are not natural-born citizens.

You are correct, the case of Bellei is not proof that other born citizens are not "natural citizens", but it calls into question the idea that if there is one such example, might there not be other examples? My effort in drawing your attention to this aspect is to move the boundary line of your opinion a bit closer to what *I* regard as the correct interpretation. With Roger v Bellei I have cloven off all those who stand on the other side of that line; Those citizens by statute. (of which I would argue Obama is JUST LIKE Bellei, except he was supposedly born over American soil; A meaningless event as far as one's allegiance is concerned.)

In any case, many argue that the 14th amendment causes jus soli to be the standard of "Natural Born Citizen" and they claim this interpretation is affirmed by Wong Kim Ark. I argue that neither the 14th Amendment, nor Wong Kim Ark use the term "natural born citizen." Instead, they both use the term "Citizen" without any modifiers. I would argue that all such "born" citizens, thereby created by the 14th amendment, (even if you allow for the Wong Kim Ark interpretation of ANYBODY born on the soil) are NOT "natural citizens", but are instead citizens by statute, even though the "statute" is a constitutional Amendment. Were they "natural citizens" they would not owe their citizenship to a change in law. They would be already citizens by the application of "nature's law."

You are no doubt correct on the changing meaning of terms. Most assuredly the day shall come when Treason itself will be considered a minor nuisance. In the cases of Clinton and Obama, I think it has come and gone without notice.

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