The Natural Born Citizen Clause as Originally Understood

Catholic University Law Review ^ | 2015 | Mary Brigid McManamon

[Yashcheritsiy]

The concluding statement in the article:

"The introduction to this Article posed a question: “in the eyes of early Americans, would someone born in a foreign country of American parents be a ‘natural born citizen’ and therefore eligible to be President of the United States?” The pertinent historical materials lead to only one conclusion: aside from children born to U.S. ambassadors or soldiers in hostile armies, the answer is “no.”"

[tumblindice]

I just returned from running the bulldog down to the river. He was swimming, thinks he’s a labrador.

Johnny, gee wally
You can believe whatever you want.
I’ll stick with the primary or black letter law, the US Constitution. I had a kernel of doubt, but the 1790 and 1795 acts certainly have probative value and helped to fortify my opinion.
And I’ll stick to the facts. Name one president born before Martin Van Buren not born in an English colony so not a “citizen”; next, name one president, from Van Buren on, who was not born on American soil. (Disregarding the current usurper.)

Larry - Moe and Curly
“It’s up to Congress to define who is or isn’t a NBC.
Agree”
(I removed the bizarre little chicken scratch marks for you.)

Let’s re-visit Article 2.

Twelfth Amendment

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.... The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
*But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President to the United States.*
See there how they parrot Art. 2, Sec. 1, clause 5?

This is just `cherry picking’ authority, but it makes clear that the Congress was given the authority by the Framers to bar or remove the senior federal executives. See the impeachment authority as well.

But don’t worry. It’s all moot ... Congress isn’t afraid of making difficult decisions—our critters can lay down next to them and go right to sleep.
The really tragic thing is going to be if they do grow a pair sometime in September or October, give Cruz the old heave-ho and install Marco Robot.

All: Would you rather be thought wrong or unreasonable?

[tumblindice]

PS http://www.art2superpac.com/issues.html

This ain’t rocket surgery: the framers didn’t want buh-holes like Obama at the wheel. Period. But if you want to count angels, see above,
and,
Cruz is a great candidate, I liked him more before we learned he was Canuck-born (uh, not that there’s anything wrong with that) ... but it is what it is.

[John Valentine]

The linked Article is not a work of scholarship, but one of advocacy, and a dishonest advocacy at that.

No honest, unbiased work of scholarship on the subject of the meaning of the phrase ‘natural born citizen’ as understood by the Framers can be considered worthwhile when it contains not even a single reference to Emmerich Vattel, or to his ‘The Law of Nations’ as the primary source of the Framers’ notions about the subject. Whatever her reasons for ignoring Vattel, doing so makes her work unreliable and essentially specious.

Instead, the author explicitly equates the phrase ‘natural born citizen’ with ‘natural born subject’ and continues her error from there. I do not deny that much 19th Century case law and dicta support the notion she is peddling, but that does not make it true.

Whatever one’s view on the matter in general, or on the author’s conclusions, the historical understandings and facts must be better founded and more complete than what is presented here, or be irrelevant.

[ROCKLOBSTER]

Andrew Jackson was born on March 15, 1767, near Lancaster, South Carolina.

Well, wasn't he a "Citizen of the United States, at the time of the Adoption of this Constitution"?

[ROCKLOBSTER]

Since the Democrats have had an illegal alien in the White House for seven years, the Republicans are entitled to have at least one President who is a citizen, even though non-NBC.

Either: "How did you come up with that one?" or "Where's your sarc tag?"

[Lurkinanloomin]

My childhood friend who was born in Germany (dad was USAF) was told he was not eligible to be President because of the circumstances of his birth. Citizen in every other way.
Diplomats are the only exception as they carry American “soil” in a legal sense with them.

[Lurkinanloomin]

Apparently not, because there is a comma followed by the words, “or a citizen at the time of”, exempting themselves because they knew it would take a while to have any natural born citizens.

[Talisker]

If you are willing to accept that a 1790 law can set the conditions under which one is considered a NBC, then the 1952 law that was in effect at the time Cruz was born also can.

Mebbe. But in 1790 there was no 14th Amendment adding to the definition of "person," while in 1952 there was. So the bottom line is which "person" are we talking about - one of "the people" or a 14th Amendment statutory "individual"? Fact is, a lot of federal courts won't even recognize citations from before the 14th Amendment. So it's a relevant issue concerning the current definition of NBC, which we know existed all the way back at the founding.

[Daffy]

There are two types of citizenship; Natural Born and Naturalized. Is Ted Cruz a Naturalized citizen? No. Is Ted Cruz a US Citizen? Yes. Therefore, he is a Natural Born citizen.

From the PDF”

II. THE MEANING OF THE PHRASE IN THE EARLY UNITED STATES

The “Natural Born” Concept Is Added to the Constitution

. . . The first draft of the Constitution to include qualifications for the
presidency was reported on August 22, 1787.

This draft provided that “he shall be of the age of thirty
five years, and a Citizen of the United States, and shall have been an Inhabitant
thereof for Twenty one years.”

Earlier, on July 25 of that year, John Jay sent the following letter to George Washington,
who was serving as the president of the Constitutional Convention at the time:

Permit me to hint, whether it would not be wise & reasonable 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 army shall
not be given to, nor devolve on, any but a natural born Citizen.

On September 2, Washington acknowledged receipt of Jay’s missive and
thanked him “for the hints contained in [his] letter.”

Two days later, on September 4, a Committee of Eleven reported the following provision to the
Convention:

No Person except a natural born Citizen, or a Citizen of the U.S. at
the time of the adoption of this Constitution shall be eligible to the
office of President: nor shall any Person be elected to that office,
who shall be under the age of 35 years, and who has not been in the
whole, at least 14 years a resident within the U.S.

On September 7, the Convention approved these requirements without objection, and only stylistic changes were made thereafter.

One of the most important early American jurists, Joseph Story, approved
of the provision. In his treatise on the Constitution [1833], he praised the
Framers’ decision to limit the presidency to “natural born citizens.”
...
Story additionally claimed that “the general propriety of the exclusion of
foreigners, in common cases, will scarcely be doubted by any sound
statesman. It cuts off all chances for ambitious foreigners who might otherwise
be intriguing for the office.”

[ROCKLOBSTER]

I am not I constitutional lawyer, just a citizen who prefers plain thinking.

That concept is known as "common sense" It is attributed to British commoners, and describes the same sort of skepticism expressed by the King's subjects when the ruling class tried to pull a fast one on them.

[Cboldt]

-- at the time of the writing of the constitution, no one in the united states was eligible to be president, including, George Washington. --

It is true that none of the founders were NBC. All were naturalized into citizenship by the formation of the nation. Their eligibility was covered by the phrase "a Citizen of the United States, at the time of the Adoption of this Constitution."

[Johnny B.]

What the Framers debated or thought as individuals is irrelevant. The only thing that matters is what was actually written into the Constitution and the relevant laws.

I just realized at least part of the disconnect here: The "Birthers" (in the broadest sense) are trying to argue that because the English common law is the basis for U.S. law, that it then trumps (pun intended) U.S. law. This is nonsense.

English common law is a "rough draft" for our laws. In effect, it says that if we don't have a specific law to cover a situation, or if our law is ambiguous, then we can use English common law to clarify the issue.

If Congress had never passed an Immigration bill, then common law would be relevant. But Congress did pass Immigration laws, which included definitions of "Natural Born Citizen". Because Congress passed specific laws covering the issue, common law is no longer relevant.

[BlackElk]

According to Birther theory, George Romney was born in Mexico of a mother and farther who fled Utah and the USA over Congress's insistence that Utah pass anti-polygamy laws as a condition of admission to the Union. They joined other fleeing Mormons to found a permanent Mormon colony in Mexico.

The long-time Catholic President of Mexico, Santa Anna, had been toppled by then. The Catholic "Emperor of Mexico" and his wife, Maximilian Hapsburg and Carlotta, had been toppled by the godless Benito Juarez who could be trusted not to "impose" Christian morality.

Many revolutions but no Christian governments in Mexico since Maximilian was waxed by a firing squad, shellacked by Juarez and sent home to Franz Josef.

It does not appear that, at the time of George's birth, his parents had any intention of returning to the USA. It does not appear that George was born here, or had actual American citizens as parents, at least according to Birther theory. I am unaware of George or his parents filing paperwork for his naturalization as an American citizen.

Thus, according to Birther theory, George was not eligible. However, if he was not a citizen but was the father of Mitt Romney (a veritable Antichrist), then, again according to Birther theory, Moral Monster Mitt Romney (hereinafter M3R) was also ineligible even though HE was born here because dad was not a citizen.

Not only that but M3Romney's kids are also ineligible since M3Romney was never naturalized. None of their children born after today's date into an unknown future will be NBCs unless and until M3R's children are naturalized before the actual birth of such offspring and, of course, even then they will need to be born here no matter what.

At some point the Birther theory gives rise to endless silly controversies that seem like Young Republican Credentials fights of my increasingly distant youth. Such fights were not about substance or integrity but about advantage. In Connecticut Young Republicans, at a very close fought state convention at which delegates were allotted by Congressional District, we disqualified one young lady as a delegate upon documenting that she had recently applied for a dog license in a town in an adjacent CD.

If you apply what passes for Birther "logic" to even Jeb Bush, you could probably challenge his status as NBC though his mother is descended from President Franklin Pierce and his father and brother both served as POTUS. Don'tcha just know that somebody back there somewhere in the Bush or Walker or Bush's mom's family line since 1787 was born elsewhere and did not sweat the naturalization process.

Trump's mama was born in Scotland. Was SHE ever naturalized? Was it before The Donald was born. Trump's paternal grandpa (original name Drumpf) came here from Germany. Was he naturalized? When? If Trump's father was born in Germany, ditto? Lincoln was closely descended from a British grandfather IIRC. Any naturalizations in his line? Or were his ancestors like mine of 100 years ago and more, people who never bothered with "naturalization" papers because they were too busy living their lives.

With all the real issues that persist in our society and the cornucopia of headaches that are Obozo's proudest products, with a $19 trillion debt, an emasculated military, an anti-American foreign policy, an open invitation to millions of Islamofascist lunatics to come here and blow up Americans, gun-grabbing, 60+ million surgical abortions and counting, a devil's variety of perversions passing as "marriage" according to SCOTUS and sooooooo many more, all we have to worry about is the meaning of some obscure and undefined language in the Constitution about NBCs????? REALLY?

[dangus]

>> The 1790 Act says they should be treated as if they were NBCs. <<

Doesn’t say they should be treated AS IF they were. It says they shall considered as.

>> If they were actually NBCs under the Constitution, such a law wouldn’t make any sense. <<

By that logic, all legislation undermines the Constitution. Quite to the contrary, it’s up to Congress to implement the Constitution, and to create laws for naturalization and citizenship. The Act did two things: it established that children born overseas to American parents were citizens, and clarified that those citizens at birth were natural-born as opposed to naturalized. It WAS entirely possible that Congress COULD HAVE decided to say that they were to be naturalized instantly after birth, or upon entry; Saying that they were natural-born was another way of saying that they were citizens at birth.

SInce it’s a Catholic journal, I’ll compare this to a Catholic theological concept (since “natural-born” references natural law):

In CATHOLIC theology (if you’re Protestant, understand that I understand that this is likely not your theology, but that’s irrelevant to this issue), the Blessed Virgin did not pre-exist her own conception. Not was she purified from sin immediately after her conception. She was saved from sin neither before nor immediately after her conception, but was created saved from sin; it was her nature to be saved from sin.

(This is an imperfect analogy, because, of course, natural-born refers to birth, not conception. The obvious reason, of course, is that birth is “public,”— in the sense of knowability, even if the happening is private — but conception is private.)

[Johnny B.]

If you apply what passes for Birther "logic" to even Jeb Bush, you could probably challenge his status as NBC though his mother is descended from President Franklin Pierce and his father and brother both served as POTUS.

Don't forget that (at least) 4 of Trump's children were born to non-citizens. That would mean (according to the Birthers), that all but one of Trump's (publicly acknowledged) children are not Natural Born Citizens.

Since the purpose of the NBC clause is to limit the Presidency to those who have an undivided loyalty to the United States, do we really want a President to has a thing for picking foreign wives and siring (according to Birthers) non-eligible children?

[bushpilot2]

Roman Emperor Caracalla was born in Syria to Syrian mother. His father was born in Africa.

Caracalla gave Roman citizenship to everyone.

Years later the natural born Roman citizens lost their liberty.

[Johnny B.]

When Madison rewrote the Act in 1795, he took that out.

So, Congress does have the right and responsibility to define the term. And, in this case, it's possible that a child born between 1790 and 1795 would have been a NBC, while his younger sibling, born under identical circumstances but after 1795, would not.

the end it was bad job by Madison. He should have defined the term.

Agreed. But that doesn't allow us to just ignore the relevant laws. There have been dozens of "immigration laws", several of which have included definitions of "Natural Born Citizen". Under the law at the time of his birth, Ted Cruz clearly qualified as an NBC.

The only arguments I've heard disputing this are based on the silly notions that Congress has no right to write immigration laws, that English common law takes priority over U.S. law, and because they just don't want it to be true.

[Johnny B.]

Roman Emperor Caracalla was born in Syria to Syrian mother. His father was born in Africa.

Caracalla gave Roman citizenship to everyone.

In this case, Trump strikes me as much more likely to act like a Roman Emperor than does Cruz.

[GreyFriar]

And there is the additional caveat to the birther theory, that any person born through modern pain killers or ceasarian section rather than via ‘natural child birth,’ is obviously not ‘natural born.’ ;-)

[prodogs]

Wow - am i missing something the initial draft of the constitution contained something completely different than what was written in this article. That difference is SIGNIFICANT in understanding the meaning of “Natural Born Citizen”.

The Original Text was
No person hall be eligible to the office of President of the United States unless he be now a citizen of one of the states, or hereafter be born a citizen of the United States.

Please notice the “born a citizen of the United States”

this phase is what John Jay was specifically calling out in his note to Washington. John Hay was petitioning to change this to “Natural Born Citizen” as this clause defined in “Laws of Nation” was understood to be born on sovereign soil to 2 citizen parents.

This is SIGNIFICANT as it implies that being born a citizen was not good enough, as John Jay implies.

Another egregious error in the omission of the definition offered by John Bingham. John Bingham was the framer of the 14th Amendment. The 14th Amendment defined “Naturalization” Although the 14th amendment did not include the term Natural Born Citizen. During congressional hearings on the 14th amendment John Bingham offered this definition of Natural Born Citizen into the congressional record :
“All from other lands, who by the terms of your laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural-born citizens. Gentlemen can find no exception to this statement touch natural born citizens except what is said in the Constitution in relation to Indians.

these two omissions are significant as they harden the intent of the founders in finding that Natural Born Citizen differs from born a citizen or citizen by birth. And indicate that a Natural Born Citizen is one who is born within the sovereign nation to 2 citizens.

If you take a firm constructionist view of the constitution then the founders intent is clear.

As to this definition both Ted Cruz and Marco Rubio are not eligible to hold the office of President Of The United States of America