Skip to comments.Birthers say Marco Rubio is not eligible to be president
Posted on 10/20/2011 1:47:23 AM PDT by Cincinatus' Wife
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."
The rub is that "natural born citizen" was never defined.
"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."
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If the U.S. Congress had never passed any laws regarding U.S. citizenship at birth, you could well be correct, since it is certainly arguable that, at common law (which applies when there are no statutes on point), citizens at birth (i.e., natural-born citizens) were limited to persons who both were born within the geographic territory of the nation and had parents who were citizens of the nation. The unanimous opinion of the U.S. Supreme Court in the case of Minor v. Happersett, 88 U.S. 162 (1874), makes this point, although it doesn’t answer with certainty (because it was unnecessary for the adjudication of the case before the Court) whether both conditions were necessary for natural-born citizenship under common law: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.” http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=88&page=162 “Natural-born” is used by the Court in contradistinction to “naturalized,” and the first means someone who us a citizen at birth, while the latter means someone who becomes a citizen later in life.
Of course, Congress *has* legislated regarding citizenship at birth, and did so as early as 1790, as the Happersett Court noted: “Congress, as early as 1790, provided that ... the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens.” And Happersett went on to note that in 1855 this conferrance of birthright citizenship to the foreign-born children of U.S. citizens “was somewhat extended, and all persons theretofore born or thereafter to be born out of the limits of the jurisdiction of the United States, whose fathers were, or should be at the time of their birth, citizens of the United States, were declared to be citizens also.” When Congress passes a law, such statute supercedes the common law on that particular matter, and, as the Supreme Court noted in Happersett, one does not need to wonder whether the foreign-born children of U.S. citizens would be natural-born citizens at common law, because a congressional statute specifies when such children would be considered U.S. citizens at birth. Today, of course, the U.S.-citizen parent(s) of foreign-born children must meet certain residency requirements for their foreign-born children to be deemd natural-born citizens.
Regarding children born in America to non-citizen parents, Congress legislated specifically to confer U.S. citizenship at birth to such children so long as they are “subject to the jurisdiction” of the United States; this statutory language tracks that of the first sentence of Section 1 of the 14th Amendment, and is currently codified in 8 U.S.C.S. 1401(a), and has remained unchanged since at least 1952 (and I believe the predecessor of the 1952 statute had identical language with respect to this clause). Now, reasonable minds may disagree on whether the children of illegal aliens should be covered by this clase, since “subject to the jurisdiction thereof” implies that the person is legally within the jurisdiction, and I believe that the courts have been incorrect in interpreting both this statute and the 14th Amendment as conferring birthright citizenship on the U.S.-born children of illegal aliens, tourists and other persons who were neither U.S. citizens not permanent residents of the U.S. But it is incontrovertible that permanent residents of the U.S. are subject to the jurisdiction of the U.S., and thus that their children are U.S. citizens at birth.
So, to sum up, given that the term “natural-born citizen” is synonymous with “citizen at birth” or “birthright citizen,” and the fact that congressional statutes supercede the common law, all persons who are U.S. citizens at birth pursuant to U.S. law are natural-born citizens of the United States. Thus, George Romney (Mitt’s father, who was born in Mexico to two U.S. citizens and who uncontroversially ran for president in 1968) and Chester Arthur (who was elected vice president in 1880 and became president upon the death of James Garfield in 1881 despite his father not having been a U.S. citizen when his son was born) were natural-born citizens of the United States and eligible for the presidency. And the same is true for John McCain and Marco Rubio (and, assuming that he was born in Hawaii, Barack Obama).
Minor v. Happersett 88 U.S. 162 states clearly what a Natural Born Citizen is. A person born in the United States to parentS who were its citizens. Plural. This means quite simply, you have to be born here and have two parents who are citizens. Minor has not been over ruled, and there is no law which has been written which changes this definition.
Your argument is nicely said and well reasoned, but still incorrect.
Obama, McCain, Jindal, Rubio all fail this definition.
My grandmother was born in Canada, my grandfather in England. Both were not natural born citizens. They became naturalized in 1941. What is the point of that particular observation?
BOTH parents must also be citizens along with birth here in order to be eligible for POTUS. That comes directly from the LAW, Minor v. Happersett 88 US 162.
He is not a Natural Born Citizen according to th eonly law in effect which defines it. Monor v. Happersett 88 US 162.
His parents were not citizens at the time of his birth, he is a dual citizen jsut like Obama. God bless him he is a great conservative and leader, but he is NOT qualified to run for POTUS. He never will be unless a new law is written enabeling it. NO MORE ILLEGAL PRESIDENTS! PERIOD.
According to these people you can’t be president.
LOL Both my parents are Natural Born Citizens. As am I, and yeah, I was born in Hawaii.
Your response is an excellent illustration of why birthers have fallen flat on their face in Congress, every state legislature and court (federal or state)in their feeble quest to change the law. Maybe if birthers respected the rule of law in our society, they may be a little bit more successful.
Every appeal, over a dozen, to SCOTUS has been unanimously denied. Obama has never even bothered to file a single response to a petition filed by a birther. SCOTUS rules are that if one justice thinks a petition has any merit and the respondent has not filed a response to the petition, the court will formally request a response before determining whether to grant writ. That has never occured. I wonder why?
Since when is it “rigid” to follow the law.
I might suggest that the IRS is “rigid” in their enforcement.
What really pisses me off beyond the pale, is that we have become a people who look at laws as if they are convenient. When they are not convenient, we just ignore them.
The real problem here is that the Supreme court needs to rule on this, clearly. They beat around the bush too much.
Is it too hard for us to expect the people we place in power to actually do their job?
That is a common body of thought, but I don't believe it to be an accurate one. I believe the term "natural born citizen" is a "term of art" known to people familiar with international law in 1787, which mostly amounts to the writings of Grotius, Puffendorf and Vattel.
John Jay, who was raised speaking French, could be said to be the Father of the Article II requirement, and his usage of the term implies that it is intended to exclude all foreign influence. Since the founding era, we have created the situation where foreigners can claim "born" citizenship for their children, while possessing no loyalty to the country whatsoever. In addition, we have created these "half and halfs" which would never occur under the circumstances with which the founders were familiar.
Both these "anchor babies" and these "half and halfs" are considered "born citizens" under the current legal misinterpretation of the 14th amendment, but they most certainly do not represent the same sort of allegiance as that which would be expected of a "natural citizen."
at a minumum = at a minimum
You cannot quote dicta as a decision, they are NOT the same. I quote from the HOLDING. That is the legally binding part of the case, and is in fact the law. The HOLDING in Minor states that it takes being born in the United States to parentS who are its CitizneS.
That is the LAW. The Dicta is an authoritative opinion and nothing else. It does not bind, it is not law.
Yes, under that very statute you cite, (the naturalization act of 1790) the Children of Non Resident Foreign fathers are forbidden by congress from receiving any sort of US Citizenship.
You have made my point for me. It was the intent of the First Congress, many of whom were delegates to the Constitutional convention and who ought to know what was meant by "natural born citizen", to agree that a non resident foreign father prevents even basic US citizenship for his offspring. That is the same status Obama possesses. Were it not for the "Cable act of 1924", and the "Women's Rights act of 1934, he wouldn't even possess basic citizenship. That he is a citizen at all was due to the fact of statutes passed by congress.
This half and half citizenship cannot be regarded as "natural", for it didn't exist until after 1924.
Rubio was born in the U.S.
That makes him a Citizen. Not a natural Born citizen. Thats the law according to Minor v Happersett which is STILL the law of the land.
I think it’s amusing that this is the sort of thing that keeps birthers up at night.
I would use a different word than amusing since the elected citizens who swear on the Constitution do not uphold it . Seems to me these “ Birthers “ could find plenty to do with the elected “ Citizen “ law breakers who stand there and lie to them and on the Bible also but seem to ignore the obvious .
No. He’s not President and never will be. Just as the second and following marriages of a bigamist are never legit, even after he dies all all his wives die.
There is no correction.