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question is because there are many out there who don't think we should even have this requirement anymore, that it's outdated, outmoded, and completely out of step with our modern, immigrant-soaked society.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.
Not me. I WILL NOT VOTE FOR AN INELIGIBLE CANDIDATE FOR PRESIDENT under any circumstances.
You could be right that SCOTUS would punt the issue forever.
However, the court that WILL NOT PUNT is the voting public. WE have the right to interpret the requirement for ourselves, when we enter the voting booth-—if it matters to us.
As I said before, it is incomprehensible that the framers intended to allow a person born in the British Empire to become POTUS. We were in a brief hiatus between wars with Britain (and Canada, as a British possession).
As a matter of fact, many American colonists who had remained loyal to Britain during the American Revolution fled to Canada in the 1780s. WOULD THE FRAMERS HAVE WANTED THE CANADIAN-BORN CHILDREN OF THESE TRAITORS TO BECOME PRESIDENT?
In 1812 the Brits sailed up the Potomac River and burned Washington.
This is just an illustration or the problem, but throughout the 19th century, military historians would understand that the reason the United States was not attacked by Britain, including our shipping, was that we had British possession Canada, with that long indefensible border, as out hostage.
For me, at least, this issue is important. I had no problem with Cruz as Senator-—but POTUS is a different matter entirely. I am stunned, actually, that alleged constitutionalists like Mark Levin attempt to dismiss the issue. It totally undermines his credibility as a constitutionalist going forward.
John Adams was a first-born child. So were several later Presidents including Polk, Truman, LBJ, Ford, Carter, Clinton, and George W. Bush.
See post 16. There are over 2 dozen opinions and decisions on the NBC issue in that post alone. My post 26 bring 50 more to the table regarding Obama.
And these are just a few. The fact is - this NBC issue - which defines a special class of citizenship unique solely and only to the President of the United States is by no means settled law.
If it was, would we be having this conversation?
Nobody disputes the 35 years of age requirement, right? This whole NBC nonsense needs to be addressed by an Amendment to the Constitution. Unless and until that happens - the SCOTUS has the final say so.
And as far as I know - They ain't said (bleep) on Cruz or Rubio. So - continue to see tagline.
I have to go to bed — I work graveyard, so I cannot read all the posts tonight (although I will tomorrow when I get home). So please indulge me ...
There is a poster here at FR that recently posted one of the pages of the document handed to immigrants to study. It described the requirements to be POTUS, including the born on US soil and of two citizen parents thing. I hope this individual posts it again. Evidently, it is published by the DOJ!
I am troubled by the Cruz thing, as I have stated before. But I am FAR, FAR more troubled by the Rubio thing — this is downright dangerous, this one. At least Obama and Cruz had one citizen parent at birth — Rubio’s parents did not bother becoming citizens until years later. His situation would completely dissolve the difference between natural born citizen and just plain old birthright citizenship. If legal US status of parents (but not citizens) vs illegal status of parents (again, not citizens) are blurred (citizen vs. non citizen parents), I fear we are lost once and for all. This means all the medical tourism, the ElChapos (anchor baby kids), Bin Laden’s (anchor baby kids)..pays off for people who have not a nickel’s worth of loyalty to America. And yet they will be able to have children who can grow up, run for office & send American young people to war? Are you freaking kidding me?
I would like to see, upon the conclusion of the 2016 election, a serious somber bi-partisan group of legislators work together on this. They will need to include the finest historical scholars, both sides of the aisle, and determine a proper and legal definition of this term, once and for all.
Because we have people in office advocating almost unlimited immigration and others wanting refugees from as far as the eye can see, courtesy of the Middle East.
We’re going to need to nail down a solid definition of who’s who.
Yes, but that doesn’t mean that these individuals do not have a valid case... it just means the issue was much too hot for any court to touch and they used the “lack of standing” criteria as an excuse to refuse to hear them.
As it has turned out, probably 90% of the US citizens have indeed suffered individual harm from our current President and therefore would have had “standing” to present a case.
He was not eligible then and never will be.
>>We’re going to need to nail down a solid definition of who’s who.<<
Absolutely agree with you. If foreign born or anchor babies (Rubio) are allowed to get elected POTUS, we’ll never see an NBC candidate again from the Democrat side (unless they are from a certified victim class as well as Marxist).
Setting up a constitutional wall right now would serve patriots well.
No - post 16 doesn't bring to the table two dozen different opinions. It brings two dozen opinions all saying the same thing - NBC depends on place of birth.
And these are just a few. The fact is - this NBC issue - which defines a special class of citizenship unique solely and only to the President of the United States is by no means settled law.
There's a difference between saying something is "settled law" and that something is "obvious" per the evidence. It's obvious per the evidence that NBC is by place of birth only, regardless of the fact that courts haven't directly ruled on it yet to "settle it according to law." A large part of why that hasn't happened, I suspect, is because everybody knew, up until our constitutionally illiterate 20th century, that an NBC was determined by birth within our jurisdiction.
And as far as I know - They ain't said (bleep) on Cruz or Rubio. So - continue to see tagline.
They didn't about Obama, either, despite the fact that he obviously isn't an NBC, having been born in Kenya.
Keep in mind, too, that the likelihood of getting a court to rule *any* candidate or politician ineligible is about nil, no matter how obvious the issue may be, because doing so would potentially invalidate everything Obama has done. Even a court which was not an Obama or Clinton appointee wouldn’t do so simply on the basis of how much upheaval it would create.
Sorry - that post came out like a run on sentence for some reason. here is the link.
http://www.state.gov/documents/organization/212239.pdf
The reason I post this is because some people really believe that there is no process that Cruz had to go through to certify his claim to US citizenship. That it was automatic, the exact same way as if he worn born in the US and had a US birth certificate.
Ted Cruz was born in Canada into a family of Cubans.
How does he feel/what would he do about the hoards of illegal alien Cubans flooding across our border that will cost us billions- with a debt of already $19 trillion?
Is THIS all we got for God’s sake?
We need an AMERICAN who loves his country.
Didn’t we learn anything from the foreigner Obama and his obscure past?
Other countries must be laughing at us..can’t even find an American to run.
Remember, in those days, it would be a rare thing for someone to have their child in a different country. Traveling was hard, and expensive.
If you went back to England to have your child, it could well suggest you had close ties to that country.
You didn’t just run around the world vacationing. And you didn’t tend to get jobs in different countries as a matter of course either.
Nowadays, the ordinary citizen has a reasonable chance to spend time in many different countries. The world is now global.
But “Natural Born”, does not mean “location of birth”, it means the natural state of the newborn.
The fears of allegiance are mitigated if you have American parents, and are raised in America, regardless of what country you managed to get birthed in.
Exactly correct.
They didn't about Obama, either, despite the fact that he obviously isn't an NBC, having been born in Kenya.
I'm as die-hard a birther as there is one. But even I know he was born in Hawaii. You're goofy on the born in Kenya claim. Pretty much tells us your other ideas and opinions (not facts) are goofy too.
And because the courts refused to rule against Obama, and because he has been (regretfully) our president for 8 years, then let this precedent apply to Cruz or Rubio. If the SCOTUS believes one or both are ineligible - they have the final ruling, right?
It is incomprehensible to me why the framers would specifically assign the making of all rules for Naturalization to Congress unless they wanted Congress to establish the rules for who does and does not need to be naturalized. In fact, that is exactly what the first Congress DID with the Naturalization act of 1790.
I think you're beginning to understand my point now.
So because no court will rule on Cruz or Rubio, they win by default. I actually agree with you. Cruz is not a NBC by the strictest interpretations. But so what? Unless and until he is ruled ineligible - let him run. And Win!
Purists that claim that failure to adhere to these strict NBC regs will circumvent the whole basis of democracy that our Constitution was based on are frickin' nutz.
What other parts of the Constitution do you think are frickin’ nutz?
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