The Constitution addresses and differentiates between “natural born Citizen” and “Citizen” with the requirements different for President/Vice President and for Congressional Members.
Will the debate on the requirement of “natural born citizen” for the position of President come up again in the 2016 race? It should, due to specific Constitutional questions on several of the potential candidates.
The unique requirement for “natural born citizen” was specifically added to the Constitution because the President is also the Commander-in-Chief of the armed forces and there could be questions of divided loyalties or foreign influence (remember the Constitution was drafted at the time of war against England and King George).
This debate came up in the 2008 race with Obama and will be equally appropriate in the 2016 race with some of the GOP hopefuls including Ted Cruz, Marco Rubio and potentially Bobby Jindal.
Specifically, the Constitution Article I, Section 2 requires “No Person shall be a Representative who shall not…been seven Years a Citizen of the United States” versus the requirement for the President, Article II, Section 1, “No Person except a natural born Citizen…shall be eligible to the Office of the President.”
Obviously, there are significant differences between “natural born Citizen” and “Citizen”. There are many ways to become the latter but only one to become the former. While the Constitution does not specifically define these terms, the key to the correct definitions is in the referenced document in Article I, Section 8, “ …. Offenses against the Law of Nations;”.
During the drafting of the Constitution, the Colonies were at war against King George and animosities were very high against the English monarchy and its laws. It is very doubtful that drafters would easily gravitate toward English Law as the basis of the Constitution.
Jefferson wrote “An elective despotism was not the government we fought for.” Jefferson also wrote, on laws associated with a Monarch, “To appoint a monarchist to conduct the affairs of a republic is like appointing an atheist to the priesthood.” (Jefferson was referring to King George who virtually worked around Parliament to enact his own Laws.)
Accordingly, drafters of the Constitution were in contact with Emerich de Vattel, a Swiss philosopher, diplomat and legal expert whose theories laid the foundation of modern international law and political philosophy. His book “The Law of Nations” was published in 1758, translated into English in 1760 and referred to in Article I, Section 8 of the Constitution. It is documented that George Washington, John Jay, James Madison and Benjamin Franklin had copies and Franklin said that members of Congress had the book.
“Natural born Citizen” is defined in “The Law of Nations” as a child being born in the Nation and whose both parents were citizens.” The key words here are “both parents”. (This is differentiated from English Law at that time that used the term “subject” versus “citizen” as they had a Monarch and English Law did not define “natural born”)
According to Chapter 19, para 212 of “Law of Nations:, “The natives, or natural-born citizens, are those born in the country of parents who are citizens”. Note, the parents can be “citizens” at the time of birth and their status can be gained from a variety of means: being a “natural born citizen” themselves or attaining “citizenship” through the XIV Amendment (“All persons born or naturalized in the United States….”)
There are several ways to become a “citizen”. An anchor baby is a “citizen” and the XIV Amendment says all persons born or naturalized in the United States are “citizens” and can run for Congress. However, neither is a “natural born citizen”. Again, if “The Law of Nations” was a basis of the Constitution and this reference was specifically cited in the Constitution, “ natural born Citizen” is defined as a child being born in the Nation and whose both parents were citizens.”
Accordingly, even with Obama being born in Hawaii, his father was not a citizen and never became one; thus Obama did not meet the requirements of “natural born Citizen.”
Both Ted Cruz and Marcio Rubio are potential 2016 GOP Presidential candidates. Both meet the qualifications of “Citizen”, but neither meets the qualifications of “natural born Citizen.”
Ted Cruz was born in Canada. His mother was American but his father was Cuban. Cruz had dual U.S. and Canadian citizenship and gave up the latter in May 2014, obviously as part of his plans to run for President.
Marco Rubio was born in the U.S. to two Cuban parents who became U.S. citizen five years after his birth: neither parent was a U.S. citizen at time of birth.
Bobby Jindal arrived in the U.S. in utero (both parents were Indian, and she was 5 months pregnant); i.e., neither parent was a U.S. citizen at time of birth.
Accordingly, Ted Cruz, Marco Rubio and Bobby Jindal do not meet the Constitutional requirements for President or Vice President.
But, neither did Barack Obama whose mother was American and whose father was Kenyan.
During the Obama 2008 presidential race, the media and the DNC ignored the Constitutional requirements of “natural born Citizen” for candidate Obama.
Numerous media and pundits for specific candidates in question cited both good and bad examples of references or law to make their case. They typically confused terminology and quickly defined a baby born in the U.S. with one U.S. parent as a “natural born citizen”. This is in direct conflict with an 1874 Supreme Court case, Minor v. Happersett, which specifically uses the plural term “parents”. Similarly, they quote the 14th Amendment which just covers “Citizens.”
Unfortunately, high level legal cases have not adequately addressed the specific role of “The Law of Nations” as a Constitutional source and the associated definition of the term “natural born Citizen.”
In 2008, Barack Obama was weakly challenged on whether he was a “natural born Citizen” as his father was not a U.S. citizen. I pro-offer that the both the GOP and Hillary Clinton similarly did not fight this very hard in order to avoid being labeled “racist.” Similarly, the main stream media, strong Obama supporters, were fairly mute on this issue.
Six years later to the present day, there are potential GOP Presidential candidates whose qualifications should be similarly challenged to assure that the Constitution is upheld and followed.
I neither support nor back any of these candidates, but I do support the Constitution.
What is the position of the GOP regarding the requirements of “natural born Citizen”?
Will the potential GOP 2016 Presidential candidates get the same pass from the media and DNC that Obama received or will these two groups suddenly “support the Constitutional requirements” and challenge the GOP candidates in a “new awareness of this requirement”?
It may be time to bring this question to the Supreme Court for a revisit of Minor v. Happersett and associated confirmation of the role of Vattel’s “The Law of Nations” in framing the Constitution.