Posted on 02/07/2016 6:49:10 AM PST by Robert DeLong
We have both had the privilege of heading the Office of the Solicitor General during different administrations. We may have different ideas about the ideal candidate in the next presidential election, but we agree on one important principle: voters should be able to choose from all constitutionally eligible candidates, free from spurious arguments that a U.S. citizen at birth is somehow not constitutionally eligible to serve as President simply because he was delivered at a hospital abroad.
The Constitution directly addresses the minimum qualifications necessary to serve as President. In addition to requiring thirty-five years of age and fourteen years of residency, the Constitution limits the presidency to "a natural born Citizen." All the sources routinely used to interpret the Constitution confirm that the phrase "natural born Citizen" has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.
While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a "natural born Citizen" means a citizen from birth with no need to go through naturalization proceedings. The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law.
As to the British practice, laws in force in the 1700s recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used "natural born" to encompass such children. These statutes provided that children born abroad to subjects of the British Empire were "natural-born Subjects . . . to all Intents, Constructions, and Purposes whatsoever." The Framers, of course, would have been intimately familiar with these statutes and the way they used terms like "natural born," since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone's Commentaries, a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.
No doubt informed by this longstanding tradition, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were "natural born Citizens." The Naturalization Act of 1790 provided that "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . ." The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress. That is particularly true in this instance, as eight of the eleven members of the committee that proposed the natural born eligibility requirement to the Convention served in the First Congress and none objected to a definition of “natural born Citizen†that included persons born abroad to citizen parents.
The proviso in the Naturalization Act of 1790 underscores that while the concept of "natural born Citizen" has remained constant and plainly includes someone who is a citizen from birth by descent without the need to undergo naturalization proceedings, the details of which individuals born abroad to a citizen parent qualify as citizens from birth have changed. The pre-Revolution British statutes sometimes focused on paternity such that only children of citizen fathers were granted citizenship at birth. The Naturalization Act of 1790 expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the United States at some point. But Congress eliminated that differential treatment of citizen mothers and fathers before any of the potential candidates in the current presidential election were born. Thus, in the relevant time period, and subject to certain residency requirements, children born abroad of a citizen parent were citizens from the moment of birth, and thus are "natural born Citizens."
The original meaning of "natural born Citizen" also comports with what we know of the Framers' purpose in including this language in the Constitution. The phrase first appeared in the draft Constitution shortly after George Washington received a letter from John Jay, the future first Chief Justice of the United States, suggesting:
[W]hether it would not be wise & seasonable to provide a . . . strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american [sic] army shall not be given to, nor devolve on, any but a natural born Citizen.
As recounted by Justice Joseph Story in his famous Commentaries on the Constitution, the purpose of the natural born Citizen clause was thus to "cut off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interpose a barrier against those corrupt interferences of foreign governments in executive elections." The Framers did not fear such machinations from those who were U.S. citizens from birth just because of the happenstance of a foreign birthplace. Indeed, John Jay's own children were born abroad while he served on diplomatic assignments, and it would be absurd to conclude that Jay proposed to exclude his own children, as foreigners of dubious loyalty, from presidential eligibility.
While the field of candidates for the next presidential election is still taking shape, at least one potential candidate, Senator Ted Cruz, was born in a Canadian hospital to a U.S. citizen mother. Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a "natural born Citizen" within the meaning of the Constitution. Indeed, because his father had also been resident in the United States, Senator Cruz would have been a "natural born Citizen" even under the Naturalization Act of 1790. Similarly, in 2008, one of the two major party candidates for President, Senator John McCain, was born outside the United States on a U.S. military base in the Panama Canal Zone to a U.S. citizen parent. Despite a few spurious suggestions to the contrary, there is no serious question that Senator McCain was fully eligible to serve as President, wholly apart from any murky debate about the precise sovereign status of the Panama Canal Zone at the time of Senator McCain's birth. Indeed, this aspect of Senator McCain's candidacy was a source of bipartisan accord. The U.S. Senate unanimously agreed that Senator McCain was eligible for the presidency, resolving that any interpretation of the natural born citizenship clause as limited to those born within the United States was "inconsistent with the purpose and intent of the 'natural born Citizen' clause of the Constitution of the United States, as evidenced by the First Congress's own statute defining the term 'natural born Citizen.'" And for the same reasons, both Senator Barry Goldwater and Governor and Governor Romney was born in Mexico to U.S. citizen parents and unsuccessfully pursued the Republican nomination for President in 1968.
There are plenty of serious issues to debate in the upcoming presidential election cycle. The less time spent dealing with specious objections to candidate eligibility, the better. Fortunately, the Constitution is refreshingly clear on these eligibility issues. To serve, an individual must be at least thirty-five years old and a "natural born Citizen." Thirty-four and a half is not enough and, for better or worse, a naturalized citizen cannot serve. But as Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase "natural born Citizen" in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent - whether in California or Canada or the Canal Zone - is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose.
Does no one understand the concept of natural law anymore?
Is critical thinking beyond most Americans?
One can only NATURALLY be a US citizen when there are no other possibilities.
Natural born citizen.
Born here of citizen parents.
That piece of garbage has been proven to be a pack of lies countless times. Read it in detail and you can see it for yourself, and then note other legal scholars have trashed the article for those lies.
There are SCOTUS decisions about “natural born” citizens. One of them came after Pres. Garfield appointed a new justice to the bench. Subsequently he was unqualified because his father obtained citizenship after Garfield was born, so the ‘parents’ (plural) could not apply. Garfield’s appointee saved his butt with Ark Kim Wok decision, confusing the issue for future generations.
That only applies to naturalization, has nothing to do with regards to “natural born” meaning.
Churchill’s mother was an expatriate. She went to Britain to marry and she became a subject of the Queen.
Katyal and Clement also ignore hundreds of other precedents on the question of the type of citizenship associated with persons born-abroad. All of the precedents in perfect accord, if a person born-abroad is a US citizen, he or she is a naturalized US citizen.
The Constitution is positive law. Better read what Story had to say about the qualifications for President.
-— Does no one understand the concept of natural law anymore? -—
If you go on vacation to Canada with your pregnant wife and she delivers a baby, the baby would have to be a Canadian citizen, right?
Does that make sense to you? It doesn’t make any sense to me.
I still think it would be in Ted Cruz's interest, and more importantly, the nation's interest to clarify how "natural born" is to be applied. This must happen in the U.S. Supreme Court, and immediately in my opinion.
You are exactly right:
2 citizen parents and born on the soil.
This was Cruz’s own descrption in 2012 - before his ambition got the best of him.
Destroying this principle will have the same effect as desroying our borders. The concept of being a US citizen is being purposely diminished.
If your wife gives birth in a country that claims children born there as citizens, then the child is a citizen of that country. The United States does this, other countries do as well. Why does that not make sense to you?
That has nothing to do with the Cruz case. His parents were lawful permanent residents of Canada. The difference between being a lawful permanent resident of Canada, and being a sojourner in Canada, may have play in Canadian citizenship law. I think it does, but at any rate, Canadian citizenship is a question of Canadian law.
Ted Cruz was born a Candian citizen.
I notice your post said nothing about US citizenship.
That’s how I have always interpreted it, with the only exception being that someone born out of the country, due to their parents being in that foreign land were in service to the nation, would still be considered “natural born”
Cool beans !
Still trying to use the infamous ‘Dred Scott’ case.
Roflol
The unique quality of Natural Born is that it is exclusive, and therefore obvious.
With Natural Born, there are no options, no questions and no doubts.
With Natural Born, there is no need of a law to define it, nor a lawyer to argue it, nor Supreme Court to decide it.
Whatever you choose call it, "born in country to citizen parents" is as basic and obvious as citizenship gets.
Any and every other situation comes with different legal, psychological and ideological aspects and are therefore NOT the same as "born in country to citizen parents".
Any and every other situation requires a decision by someone in authority, to determine which citizenship legally applies from the possible options, and is covered under naturalization law.
The work currently being done to redefine NBC is not just some simple political gamesmanship being used to satisfy our unrequited political infatuations.
Calling different things all by the same name is a form of intellectual dishonesty that sabotages integrity and leads to insanity.
Just for consideration, what does it mean when authority forces you to agree with a lie and then act as though it is truth?
(Just for grins, who in history is known as "The Deceiver"?)
Rebellion against fundamentals might work "in the moment", but always leads to a fall, and then destruction.
According to the Naturalization Act of 1790 they are considered "natural born" citizens if all of the above exceptions can be answered satisfactorily with regards to the exceptions listed above.
“That’s true, but Ted was born in Canada, thus the confusion as to the meaning of “natural born†citizen and if it applied to Ted Cruz.”
There is zero excuse for confusion, because Ted Cruz is a naturalized citizen of the United States by the authority of the U.S. Immigration and Naturalization Act of 1952, which automatically naturalizes the child born abroad with one alien parent and one U.S. parent.
66 Stat. Public Law 414 - June 27, 1952. TITLE III - NATIONALITY AND NATURALIZATION. Chapter 1 - Nationality at Birth and by Collective Naturalization. NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH. Sec. 301. (a) The following shall be nationals and citizens of the United States at birth; . . . (7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at lest five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.
U.S. Department of State Foreign Affairs Manual Volume 7
Consular Affairs. 7 FAM 1151 INTRODUCTION... b. 8 U.S.C. 1101(a)(23); INA 101(a)(23)) defines naturalization as the conferring of nationality of a state upon a person after birth by any means whatsoever. . . For the purposes of this subchapter naturalization includes:... (5) “Automatic”  acquisition of U.S. citizenship after birth, a form of naturalization by certain children born abroad to U.S. citizen parents or children adopted abroad by U.S. citizen parents.
United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. said “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized....”
The U.S. Supreme Court stated very clearly: “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized....” Ted Cruz was without any doubt whatsoever “born out of the jurisdiction of the United States” and he also without doubt “can only become a citizen by being naturalized” just as stated by the U.S. Supreme Court.
"ll the sources routinely used to interpret the Constitution confirm that the phrase "natural born Citizen" has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time.">
Vattel's says "The natives, or natural-born citizens, are those born in the country, of parents who are citizens. " So the statement above is an appeal to authority but falsely claims that "all" such authorities are in agreement.
And why does the article refer to Common law as "two sources"? "The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law. "
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