Constitutional Presidential Qualfications – Difference Between “Natural Born Citizen” And “Citizen”

By
Larry Laibson

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.

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15 thoughts on “Constitutional Presidential Qualfications – Difference Between “Natural Born Citizen” And “Citizen””

  1. Every child born on US SOIL (and Hawaii is US soil) is a Natural Born US Citizen except for the children of foreign diplomats and enemy invaders. The term “Natural Born Citizen” comes from the common law (not from Vattel, who is not even mentioned ONCE in the Federalist Papers, and who recommended several things that we did not adopt, like a nobility and a state religion). And in the common law, the term Natural Born referred to any citizen at birth and every child born in the realm, within the control of the king, was Natural Born.

    “What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen.” (Senate Judiciary Committee hearing on OCTOBER 5, 2004)–Senator Orrin G. Hatch (R-UT).

    “Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are “natural born citizens” eligible to serve as President …”—- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]

    “Some birthers imagine that there is a difference between being a “citizen by birth” or a “native citizen” on the one hand and a “natural born” citizen on the other. “Eccentric” is too kind a word for this notion, which is either daft or dishonest. All three terms are identical in meaning.”—The Wall Street Journal (http://online.wsj.com/article/SB10001424052970204619004574322281597739634.html?KEYWORDS=obama+%22natural+born+citizen%22+minor+happersett)

    “Every child born in the United States is a natural-born United States citizen except for the children of diplomats.”—Senator Lindsay Graham (December 11, 2008 letter to constituents)

    More reading on the subject:

    More reading on the subject:

    http://www.fredthompsonsamerica.com/2012/07/31/is-rubio-eligible/

    http://www.economist.com/blogs/democracyinamerica/2012/02/birtherism-2012

    http://www.obamabirthbook.com/http:/www.obamabirthbook.com/2012/04/vattel-and-natural-born-citizen/

    http://en.wikipedia.org/wiki/Natural-born-citizen_clause_of_the_U.S._Constitution

    http://tesibria.typepad.com/whats_your_evidence/scotus-natural-born-citizen-a-compendium.html

    1. Ellen, Thank you for your comments. It is apparent to me that the Constitution specifically differentiates between the terms “natural born Citizen” and “Citizen” for qualifications for President and Vice President (Article I, Section 2) versus for qualifications for Congress (Article II, Section 1) so the drafters definitely had something in mind to make this clear through different cites. There are many ways to become the latter but only one to become the former. I think “anchor babies” (born in the U.S. to parents both of whom are not U.S. citizens) meets the qualifications for “Citizen” but not “natural born Citizen” as of concern to the drafters. Unfortunately, the drafters did not specifically define the two terms to the ensuing debate is on whether English Common Law or Vattell applies. I believe the drafters were trying to avoid or minimize many parts of Common Law after just completing years of war against King George and his strong rule against his sovereigns and colonies. In fact, English Law uses the terms “subjects at birth”, which would be inimical to the drafters, and did define “natural born. “Natural born Citizen” is defined by Vattel 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”. It is known fact that drafters of the Constitution communicated with Vattell and had copies of his treatise, “Law of Nations”. I pro-offer that this is the referenced document in Article I, Section 8, “ …. Offenses against the Law of Nations;”

    2. The United States is a Constitutional Republic. We don’t operate by English Common Law. That’s part of what prompted George Mason at the Virginia ratification debates to comment “ . . . the Common Law of England is not the common law of these States.” [See: http://www.constitution.org/rc/rat_va_16.txt ] What protection would there be if legislative acts could overrule what had been common law rights? That was part of the reason George Mason and others pushed for what would eventually become known as the Bill of Rights, to codify into the Constitution some of those rights that had previously been protected under common law, but now would have to defer to the Supremacy of the Constitution.

      That position was echoed by Justice Joseph Story in the 1829 case Van Ness v. Packard “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.” (See: http://supreme.justia.com/cases/federal/us/27/137/)

      So too did the US Supreme Court indicate in its 1834 case of Wheaton v. Peters. Justice McLean, delivering the majority opinion states “It is clear there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs, and common law. There is no principle which pervades the union and has the authority of law that is not embodied in the Constitution or laws of the Union. The common law could be made a part of our federal system only by legislative adoption.” [See: https://supreme.justia.com/cases/federal/us/33/591/case.html%5D

      And In a November 22, 2008 speech to the Federalist Society, Supreme Court Justice Antonin Scalia confirmed that English common law did not “control” at the national or Federal level after the United States gained its independence from Great Britain:
      “The common law is gone. The federal courts never applied the common law and even in the state courts it’s codified now.” [The YouTube version can be found at https://www.youtube.com/watch?v=qeOGtKcjkwM#t=16 with the particular passage I cited at the 41:35-41:45 mark]

      So it’s inappropriate to appeal to English common law as the basis for your argument without also showing how that principle has been legislatively incorporated into American statutory law and/or validated by the federal courts at either the Appellate or Supreme Court level.

  2. The idea that the “Law of Nations” referred to in Article I of the Constitution is Vattel’s book of commentary on the law of nations is about as silly as saying Judge Roy Moore wants to run Cecil B. DeMille’s movie about the Ten Commandments in his courtroom

  3. RoyB, please back-up your statement with some facts. Obviously the Constitution used different terminology for “natural born Citizen” and “Citizen”, it is a known fact that Vattel was known to the drafters and they had his treatise “The Law of Nations” which included a definition of “natural born Citizen” and that the term “Law of Nations” was in Article I, Section 9 (drafters used “capitalization” for specific meanings and references).

  4. I agree with the detailed analysis provided by Mr. Laibson. I have read very similar articles by scholars on Constitutional Law and jurisprudence. It is quite clear that the founders had differences in qualifications in mind; thus the two unique terms – “natural born citizen”, and “..been 7 years a citizen”, used in defining who may qualify for specific political office. I surely want the intent of my founding ancestor John Adams to be continued in perpetuity; and not lessened by mob rule.

    1. Allan if you researched your relatives background and history you will find that he had a grandson , The son of John Quincy Adams that was held to be not eligible because of his birth in Germany. Here we have a direct kin of two presidents found to be ineligible . It is said or thought that he committed suicide over such pressures and problems

    1. Barb, exactly. Not only do we need to look at everything they knew at the time of the founding, but also everything they were trying to achieve and prevent. So much can be learned from the people they looked to and the material they referenced, but just as much can be learned by their actions.

      They feared losing their country to corruption and they wanted the President the only be held by someone of the highest loyalty and there’s no better way than to only accept those born there to two of their citizens. There is inherently no foreign influence this way which is what they were specifically trying to prevent. By having someone only born to one citizen or those born outside the country, even if both parents are citizens, become President they risk allowing corruption to take hold.

  5. The writer needs to revisit Vattel. In section 212, he describes the citizen parents as the FATHERS! Place of birth and citizenship of the mother are irrelevant!

    1. I totally agree with you and thought I sent a copy of my article on this subject, but maybe not. There is one more point to add to your argument and that is the reason to differentiate between citizens for ordinary offices and natural born citizens for the office of President – it’s to ensure the Commander in Chief has loyalty to his country and only to his country. Because this argument is not over, thanks to the Cruz people continuing to talk about getting their candidate nominated at a contested convention.

  6. It is apparent that some just do not want to credit the founders’ wealth of knowledge as significant especially as it pertains to the subject of citizenship. Shame on their shortsightedness and lack of integrity as it pertains to constitutional matters. Obviously all persons born in the U.S. are NOT natural born citizens as noted in the Constitution. Today, Ted Cruz, Marco Rubio AND Barry Soetoro are ineligible to be POTUS and We the People must demand that our organic law is followed!

  7. “To define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations” is not a reference to Vattel’s work in Article 1 Section 8 of the Constitution. It merely gives Congress the power to punish violations of international law. “International” was first used as a word less than a decade before the Constitutional Convention and before that “law of nations” was the phrase used for international law; the creator of the word “international” even mentions this when he first used it,

         

    “The word international, it must be acknowledged, is a new one; though, it is hoped, sufficiently analogous and intelligible. It is calculated to express, in a more significant way, the branch of law which goes commonly under the name of the law of nations: an appellation so uncharacteristic, that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence.” [Bentham, “Introduction to the Principles of Morals and Legislation”] from the Online Etymology Dictionary http://www.etymonline.com/index.php?term=international

    And there is nothing that indicates the Framers meant anything more than someone who is a citizen at birth when they wrote “natural born citizen”

    I would also like to point out that English common law is actually used in the United States through the governments of 49 of the 50 states (Louisiana being the exception)

    Ҥ 1-200. The common law.

    The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.

    Code 1919, § 2, § 1-10; 2005, c. 839.”

    That is Section 1-200 of Chapter 2.1 of Title 1 of the Code of Virginia and is a perfect example of English common law being used in the United States.

    The Framers also borrowed heavily from English law as the former colonies had operated under English law for almost 2 centuries already. The influence of English law can be seen in the bicameral Congress with an upper house (the Senate) and a lower house (the House of Representatives) with members of the lower house elected by the people much like the English Parliament, which is bicameral and it has an upper house (House of Lords) and lower house (House of Commons) with the lower house members elected by the people.

  8. The US constitution and 8 U.S. Code § 1401 (Nationals and citizens of United States at birth) are the only laws that apply when asking the question “who is a natural born American citizen?”

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