On Constitutional Eligibility

ML/NJ

[ml/nj]

The Constitution says that to be eligible to be President of the United States a person must, among other things, be a natural-born citizen. Elsewhere it says that Congress is given the power to establish rules of naturalization. It is absurd to think that the passage of time and/or Congress can change the definition of natural-born, as that would effectively give the Congress (or the passage of time) the power to amend the Constitution outside the provisions of Article V of the Constitution.

So to establish what WAS meant by natural-born in 1787 when the Constitution was drafted, we need some sort of History of the English Language. And that is what the Oxford English Dictionary is. It is much more than a dictionary. It is a history of meanings and usages of words over time.

So first we should look up natural-born.

This and the two other definitions presented here come from the Second Edition of the OED first published in 1989 and then republished with corrections in 1991.

I think the most important part of this entry is the suggestion to compare this definition with that of native-born. This suggests to me that the two phrases have slightly different meanings and might be confused with one another. So here is what the OED says about native-born. (Note that by 1876, natural-born did morph into considering place of birth determinative, but that back in 1833 this was definitely not the case.)

The difference between natural-born and native-born is that parents do not matter for the latter, but they do for the former.

There is one other definition that is important to this discussion and it is the one that defines that power of naturalization that was given to Congress. Here it is.

So that power given to Congress is to declare that those who would not otherwise be citizens, i.e. aliens, have the same standing as if they were native-born, NOT natural-born.

Now there is some ambiguity here. The definition of natural-born is given of plural children of plural parents. It is not entirely unreasonable to read this as a child of at least one citizen should be considered natural-born, though some who read it that way might also insist that the father is the one to confer this status. My own opinion is that both parents must have been citizens at the time of ones birth and that the place of birth is irrelevant regarding natural-born status. This should have eliminated Barack Obama, and because I believe he is ineligible, I really hope the Republicans do not nominate Ted Cruz, his political positions notwithstanding.

ML/NJ

[faithhopecharity]

yes, it was understood to mean both parents (but if there were any ambiguity at any time it would have been the daddy’s citizenship which would have controlled)

Obama was always ineligible, the controversy over his faked picture of a ‘birth cert’ was a very clever (and sucessful) diversion from the acknowledged fact of his daddy’s being Kenyan

I hope Cruz IS nominated because I like 95% of what he says (higher percentage so far than for any of the other candidates)...... and I think the courts would DUCK the problem..........just like they’ve done for Obama

just my opinion. on a very, very good day it might be worth as much as you paid for it

smile
smile
(I have to go offline for the rest of the day, so anyone looking for a fight... you will be better off bashing someone else’s posting today, thanks and all the best 2U,
Fhc)

[sox_the_cat]

How about in 2016, where children are conceived by IVF, where the father is never known? Natural born? Does it matter?

[faithhopecharity]

We’re told our current Occupant of our White House was born of a Virgin,, yes?

[DiogenesLamp]

It is not entirely unreasonable to read this as a child of at least one citizen should be considered natural-born, though some who read it that way might also insist that the father is the one to confer this status. My own opinion is that both parents must have been citizens at the time of ones birth and that the place of birth is irrelevant regarding natural-born status.

It is my understanding that it was the common law to automatically naturalize any woman who married an American. By marrying an American, you became an American citizen whether you wanted to be one or not.

Therefore, it is redundant to say the woman should also be an American citizen, because if they married an American, they were.

Congress made this common law practice into an official statute in 1855:

"any woman who might lawfully be naturalized under existing laws, married, or shall be married to a citizen of the United States, shall be deemed and taken to be a citizen."[Act of February 10, 1855, 10 Stat. 604, section 2]

[faithhopecharity]

at least he seems to think so

[chulaivn66]

From Vattel’s Law of Nations. Sections 212 to 217.

§ 212. Citizens and natives.
The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.

§ 213. Inhabitants.
The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country. Bound to the society by their residence, they are subject to the laws of the state while they reside in it; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the law or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society without participating in all its advantages. Their child follow the condition of their fathers; and, as the state has given to these the right of perpetual residence, their right passes to their posterity.

§ 214. Naturalization.(58)
A nation, or the sovereign who represents it, may grant to a foreigner the quality of citizen, by admitting him into the body of the political society. This is called naturalization. There are some states in which the sovereign cannot grant to a foreigner all the rights of citizens, — for example, that of holding public offices — and where, consequently, he has the power of granting only an imperfect naturalization. It is here a regulation of the fundamental law, which limits the power of the prince. In other states, as in England and Poland, the prince cannot naturalize a single person, without the concurrence of the nation, represented by its deputies. Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.

§ 215. Children of citizens born in a foreign country.
It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. (59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say “of itself,” for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.

§ 216. Children born at sea.
As to children born at sea, if they are born in those parts of it that are possessed by their nation, they are born in the country: if it is on the open sea, there is no reason to make a distinction between them and those who are born in the country; for, naturally, it is our extraction, not the place of our birth, that gives us rights: and if the children are born in a vessel belonging to the nation, they may be reputed born in its territories; for, it is natural to consider the vessels of a nation as parts of its territory, especially when they sail upon a free sea, since the state retains its jurisdiction over those vessels. And as, according to the commonly received custom, this jurisdiction is preserved over the vessels, even in parts of the sea subject to a foreign dominion, all the children born in the vessels of a nation are considered as born in its territory. For the same reason, those born in a foreign vessel are reputed born in a foreign country, unless their birth took place in a port belonging to their own nation; for, the port is more particularly a part of the territory; and the mother, though at that moment on board a foreign vessel, is not on that account out of the country. I suppose that she and her husband have not quitted their native country to settle elsewhere.

§ 217. Children born in the armies of the state.
For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.

[SeekAndFind]

RE: Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance [sic] or as is generally called, the allegiance of the king; and alien such as are born out of it.

____________________________

The key to this passage is the concept of “allegiance”–whether the individual has been born with allegiance to the king, or not. Individuals born with allegiance to the sovereign are ”natural-born” subjects; those lacking such allegiance are not. It is not, a question merely of being born within the geographic confines of the country. A citation to the James Madison passage confirms this, as Madison acknowledges that “place is the most certain criterion,” but he is not suggesting that it is the only criterion, as he states unequivocally that the “established maxim” is that the ultimate criterion is “allegiance,” of which the place of birth is but one (albeit “certain”) criterion.

Article I, section eight gives Congress the authority to “establish a uniform rule of Naturalization,” and thus identify, by statute, those who must to go through a naturalization process to obtain U.S. citizenship. Those citizens who do not need to go through the naturalization process are “natural born” citizens. As former Solicitors General Neil Katyal and Paul Clement have recently noted in the Harvard Law Review Forum,

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. . . .

The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law and enactments of the First Congress. Both confirm that the original meaning of the phrase "natural born Citizen" includes persons born abroad who are citizens from birth based on the citizenship of a parent.

So, by the time of Blackstone’s Commentaries (published beginning in 1765), Blackstone himself acknowledged that the law of England had evolved to recognize “that all children, born out of the king’s ligeance [sic] whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception.”

Assuming that modern Equal Protection Clause jurisprudence would not permit any constitutional distinction of children based upon fathers versus mothers who are U.S. citizens (Cruz’s mother was a U.S. citizen at his birth; his father was not)–and there is no legal reason, today, to think that a mother who is a U.S. citizen owes less “allegiance” to the U.S. than would the father–the law existing at the time of the U.S. founding suggests that, in interpreting Article II’s phrase “natural born citizen,” children born abroad to U.S. citizens should be considered “natural born.”

Therefore, the question is this --- Did Ted Cruz have to go through the naturalization process in order to be deemed a citizen? If he did, then No, he is NOT Natural born. If he did not have to, then YES he is a natural born citizen.

[Bob434]

Currently, Title 8 of the U.S. Code fills in the gaps left by the Constitution. Section 1401 defines the following as people who are “citizens of the United States at birth:”

Anyone born inside the United States

Any Indian or Eskimo born in the United States, provided being a citizen of the U.S. does not impair the person’s status as a citizen of the tribe

Any one born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.

Any one born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national

Any one born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year

Any one found in the U.S. under the age of five, whose parentage cannot be determined, as long as proof of non-citizenship is not provided by age 21

Any one born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)

A final, historical condition: a person born before 5/24/1934 of an alien father and a U.S. citizen mother who has lived in the U.S.

Anyone falling into these categories is considered natural-born, and is eligible to run for President or Vice President. These provisions allow the children of military families to be considered natural-born, for example.

http://www.usconstitution.net/consttop_citi.html

[ml/nj]

Vattel is nice. But he was a Frenchman and so cannot be considered as the arbiter of what some English language phrase meant to English speaking persons. Some might argue that the Framers were all well read men and familiar with Vattel, but was that really true of the people they were writing for?

I have tried to demonstrate that English speakers at the time of the drafting of the Constitution associated natural-born with lineage and distinctively native-born with place.

ML/NJ

[freedomjusticeruleoflaw]

Finally! Someone gets it. It’s NOT complicated!

[ml/nj]

I guess you didn't read, or understand, what I wrote.

Acts of Congress have no relevance to what natural-born means regarding Presidential eligibility as otherwise they would have amending power in this regard. And they do not. There are clearly established, exclusive rules for amending the Constitution given in Article V.

ML/NJ

[nesnah]

1) My parents were born in this country to 2 citizen parents; I was born of them in this country.

What am I, and why?

2) I was born in Guatemala to a US citizen father, and a German mother. We moved to the US 3 years later.

What am I, and why?

3) I was born on US soil to two Australian citizens, who both became US citizens years later.

What am I, and why?

See, folks, it’s really pretty simple.

“Natural-born”.....of nature.....no questions, no laws, no statutes.

[kjam22]

I’m still think Cruz should say... gee... I found out I was not natural born. I’m told my mother took pain killers and a variety of other drugs during my birth. I was not a natural birth. /s

[Las Vegas Ron]

Many of the Framers spoke French.

[Las Vegas Ron]

“Natural-born”.....of nature.....no questions, no laws, no statutes.

Indisputable, just what the Founders intended.

Such a simple concept, yet so difficult for so may to grasp.

[kjam22]

1) My parents were born in this country to 2 citizen parents; I was born of them in this country.

What am I, and why? (White Privileged)

2) I was born in Guatemala to a US citizen father, and a German mother. We moved to the US 3 years later.

What am I, and why? A Krout

3) I was born on US soil to two Australian citizens, who both became US citizens years later.

What am I, and why? Keith Urban's long lost brother

[Cold Heat]

Women were granted legal status by statute and then by amendment and thus are able to pass on natural born constitutional status on their own, just as the father once did.

[kjam22]

It does seem if the intent of the framers was that the president must be born on US Soil it would have been pretty simple for them to say “native born” in the constitution.

[Bob434]

sorry- left this part out of my post to you

The Constitution authorizes the Congress to do create clarifying legislation in Section 5 of the 14th Amendment; the Constitution, in Article 1, Section 8, Clause 4, also allows the Congress to create law regarding naturalization, which includes citizenship.

http://www.usconstitution.net/consttop_citi.html

Yes there are clearly defined rules, and congress followed them which allowed McCain, Mitch’s Dad, Rubio, Trump, Cruz, Jindal etc all the right to run- What congress doesn’t have the power to do is grant themselves more powers- they do have the right to define what NBC means within the guidelines- which they did

IF someone wishes to refute this, they will need to take it to court and get the courts to overturn Congress’ right to allow NBC as defined and accepted for decades now-