Do Republican Presidential Candidates Fear That “the Birthers” are Right?

HISTORY SHOWS THAT BIRTHPLACE ALONE DOES NOT DETERMINE CITIZENSHIP

by Sharon Rondeau

(Aug. 23, 2015) — While campaigning in New Hampshire on Thursday, 2016 presidential candidate and former Florida Gov. Jeb Bush opined that fellow candidates Sens. Ted Cruz and Marco Rubio should not be considered ineligible because of the circumstances of their respective births, parentage and subsequent questions about their citizenship status.

Last Sunday, presidential candidate Donald Trump unveiled his plan for immigration reform and an end to what is commonly known as “birthright citizenship,” which unleashed the current firestorm over who is and is not a citizen of the United States when born inside its geographical confines.

Trump’s plan includes the concept of “Defend[ing] The Laws And Constitution Of The United States.”  “No one is above the law. The following steps will return to the American people the safety of their laws, which politicians have stolen from them,” Trump said, covering such topics as foreign-worker visa distribution, building a security wall on the U.S.-Mexico border, and reducing crimes committed against Americans by illegal aliens.

“This remains the biggest magnet for illegal immigration,” Trump wrote in regard to birthright citizenship.

Trump’s declaration quickly initiated discussion of the 14th Amendment, passed in 1868 during the Reconstruction period.  The constitutional amendment, the second of a set of three amendments passed in order to solidify the civil and constitutional rights of former slaves, states in Section 1, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The 13th Amendment abolished slavery anywhere in the United States, and the 15th Amendment guaranteed the right to vote to all citizens.  The 14th Amendment took just over two years from its introduction in Congress to be ratified.

To this writer’s knowledge, a discussion of the parents’ status as it relates to the citizenship of their children who later become presidential candidates is occurring for the first time since questions arose in late 2007 as to Barack Hussein Obama’s constitutional eligibility to serve as president given his claim of a father who was never a U.S. citizen and no proof that he was born in the United States.

Article II, Section 1, clause 5 of the U.S. Constitution requires that the president be a “natural born Citizen.”  Since questions first arose about Obama’s eligibility, anyone who has expressed doubt has been termed a “birther,” including by the mainstream media.

More than seven years later, there is still no proof that Obama was born in Hawaii.  Some scholars believe that Obama’s birthplace is irrelevant given that his father was never a U.S. citizen.

The Framers of the Constitution were known to have consulted “The Law of Nations” by Swiss philosopher Emmerich de Vattel, who wrote in Section 212:

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.

As was accurately reported by The New York Times, Bush appeared to simultaneously equate the question of whether or not Cruz is a “natural born Citizen” because of his birth in Canada to a Cuban-citizen father and a U.S.-citizen mother to Rubio’s birth in the United States to two immigrant parents who had fled Fidel Castro’s Cuba following the 1959 revolution.

Beginning that year, Cuban refugees were granted asylum in the U.S., and in 1966, the Cuban Adjustment Act was passed offering permanent residency to Cubans who had resided in the U.S. for one year “at the discretion of the Attorney General.”  Since 1995, U.S. policy toward Cubans escaping the communist island has been that of “wet foot, dry foot,” meaning that any Cuban who reached U.S. shores on his own would generally be allowed to stay; those interdicted in the waters between the two countries were generally repatriated to Cuba unless they could demonstrate a clear threat of political persecution.

Rubio has said that his parents were “permanent legal residents” when he was born in Florida in 1971, the same year another presidential contender, Louisiana Gov. Bobby Jindal, was born to two non-U.S.-citizen parents also reported to have been “permanent legal residents.”

Cruz claims that Bush misunderstands his citizenship status.  In a statement responding to Bush’s comments, Cruz did not differentiate between U.S. citizenship and the Constitution’s “natural born” requirement for president.

Currently, U.S. policy bestows citizenship on any child born within its confines, regardless of the citizenship of the parents.  An exception has been if the child’s parents are in the service of a foreign government.  In July 2011, however, the Center for Immigration Studies (CIS) reported that “A lack of direction from Congress has resulted in children born to foreign diplomats on U.S. soil receiving U.S. birth certificates and Social Security numbers (SSNs) — effectively becoming U.S. citizens — despite the limiting language within the Citizenship Clause of the 14th Amendment.”

In the 1875 case of Minor v. Happersett, the U.S. Supreme Court referred to a “natural born Citizen” as one born in the U.S. to parents who were citizens.  Virginia Minor had attempted to make the case that her 14th Amendment “equal protection” rights were violated because, as a woman, she was not allowed to vote.

When asked about the issue of who should and should not be considered a citizen in the wake of Trump’s plan, Bush opined, “If people are here legally, they have a visa, and they have a child who’s born here, I think that they ought to be American citizens.”  He then posed the hypothetical that someone as “talented” as Rubio should not be precluded from being considered in possession of U.S. citizenship.

Bush also believes that birthright citizenship is “a constitutional right.”

Some news media, one of which this writer heard on a television broadcast last week, have reported that automatic, or “birthright,” citizenship by virtue of a physical birth on U.S. soil without any other requirements is “enshrined in the Constitution.”  In response to Trump’s declared intention to end birthright citizenship, CBS reported that “Birthright citizenship is guaranteed by the Fourteenth Amendment, which reads ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.'”

The 14th Amendment is also known for its guarantee of “equal protection under the law.”

“Trump rails against birthright citizenship,” CBS captioned its video report, while an anchor and commentator jokingly claimed that Trump was not dealing with “reality.”

In recent years, the media has been criticized for failing to inform the American people of their government’s activities in an unbiased manner.  The vast majority of reporters for major news companies lean politically to the left.

In 2007, Accuracy in Media (AIM) reported that approximately 380,000 children were born annually “born to illegal alien mothers that become citizens simply because their mothers gave birth on U.S. soil.”  Writer Andy Selepak stated that birthright citizenship was a “flawed interpretation of the 14th Amendment.”

In 2004, columnist Frosty Wooldridge reported that “In 1994, 74,987 anchor babies in maternity units cost taxpayers $215 million in Stockton, California” and said that “We’re talking about a crisis SO huge, your children and this country will not survive it.”

Today, California is granting drivers’ licenses, medical benefits, social services and positions in local government to illegal aliens.

In its reportage of Trump’s stated position, U.S. News & World Report included the entire wording of the 14th Amendment but stated that it “guaranteed” automatic citizenship to anyone born in the U.S.  The article termed Trump’s proposal a “relative fringe” one.

Several informational websites, including one from The Library of Congress, omit the words “subject to the jurisdiction thereof” when discussing the 14th Amendment.

Article I, Section 8, clause 4 of the U.S. Constitution authorizes Congress “to establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.”  Naturalization laws passed in 1790 and 1795, respectively, required an applicant for United States citizenship to meet certain residency requirements, to proclaim his allegiance to the new nation, and to be “of good moral character.”

Birthright citizenship’s beneficiaries are sometimes referred to as “anchor babies,” signifying children born on U.S. soil to illegal aliens who may subsequently bring their relatives to the U.S. without adherence to statutes passed by Congress.

A brief biography of Michigan Sen. Jacob Merritt Howard, who played a significant role in the drafting of the three Reconstruction amendments, states that “Howard also participated in debate over the first clause of the Fourteenth Amendment to the United States Constitution, arguing for including the phrase and subject to the jurisdiction thereof [sic] specifically because he wanted to make clear that the simple accident of birth in the United States was not sufficient to justify citizenship. Howard said: ‘[The 14th amendment] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include very other class of person.'”

Former presidential candidate and Colorado U.S. representative Tom Tancredo wrote in an August 21, 2015 article quoting Howard that “Moreover, the 1896 US Supreme Court decision often cited as affirming citizenship for children born to immigrants, US v. Wong Kim Ark, concerned only a LEGAL immigrant.”

In August 2010, The Christian Science Monitor discussed the issue of birthright citizenship with an inclusion of the statement that, “Circumscribing birthright citizenship with a bill would be very difficult, particularly while President Obama remains in office. But doing the same thing via the direct route of amending the Constitution would be virtually impossible.”

Some have described birthright citizenship as coming from a “law” and its proposed abolition the striking down of a “150-year-old cornerstone of American citizenship.”

One scholar’s interpretation of the intention of the 14th Amendment’s principal architect, Rep. John Bingham, is that the states would be compelled to uphold all aspects of the ten amendments contained in the Bill of Rights.

The amendment’s ratification was reported in The New York Tribune on July 20, 1868.

Article V of the United States Constitution describes how amendments were to be added to the Bill of Rights by two methods:  a convention of the states after “two thirds of the several states” called for one; or when in Congress, “two thirds of both houses shall deem it necessary” to propose one or more amendments.  Currently, legal scholar Montgomery Blair Sibley has a pending case in Washington, DC seeking to compel Speaker of the House John Boehner and Senate Majority Leader Mitch McConnell to call a convention of states given that the necessary quota of states expressing a desire for one has been surpassed.

Fox News’s Judge Andrew Napolitano, known as a constitutional expert, opined in response to Trump’s plan, “The Constitution says very clearly, whoever is born here – no matter the intent of the parent – is a natural-born citizen. He could not change that. Even if he were to change the Constitution, it would not affect people who had already been born here. It would only affect people not yet born here,”

In early 2011, legislators from at least five states as well as U.S. Rep. Peter King drafted proposed bills with the purpose of ending birthright citizenship. Simultaneously, Linda Monk, J.D., wrote a formal paper titled, “Birth Rights:  Citizenship and the Constitution” discussing the various legal and constitutional questions surrounding the practice and whether or not ending it would withstand constitutional challenges.

In a January 2011 discussion of state legislators’ intention to end birthright citizenship, Fox News legal analyst Peter Johnson Jr. explained to anchor Megyn Kelly that an 1898 U.S. Supreme Court case, United States v. Wong Kim Ark, resulted in the ruling that Wong Kim Ark was a “citizen of the United States” despite his parents’ having been “subjects of the Emperor of China” while domiciled in California for a number of years.

The U.S. State Department’s Office of the Historian states that restrictions were passed in the 19th century by the state of California on immigrants from China arising from cultural, economic, and ethical tensions between Chinese immigrants and the Americans with whom they commingled.

…In 1879, advocates of immigration restriction succeeded in introducing and passing legislation in Congress to limit the number of Chinese arriving to fifteen per ship or vessel. Republican President Rutherford B. Hayes vetoed the bill because it violated U.S. treaty agreements with China. Nevertheless, it was still an important victory for advocates of exclusion. Democrats, led by supporters in the West, advocated for all-out exclusion of Chinese immigrants. Although Republicans were largely sympathetic to western concerns, they were committed to a platform of free immigration. In order to placate the western states without offending China, President Hayes sought a revision of the Burlingame-Seward Treaty in which China agreed to limit immigration to the United States.

…In 1882, Congress passed the Chinese Exclusion Act, which, per the terms of the Angell Treaty, suspended the immigration of Chinese laborers (skilled or unskilled) for a period of 10 years. The Act also required every Chinese person traveling in or out of the country to carry a certificate identifying his or her status as a laborer, scholar, diplomat, or merchant. The 1882 Act was the first in American history to place broad restrictions on immigration.

For American presidents and Congressmen addressing the question of Chinese exclusion, the challenge was to balance domestic attitudes and politics, which dictated an anti-Chinese policy, while maintaining good diplomatic relations with China, where exclusion would be seen as an affront and a violation of treaty promises. The domestic factors ultimately trumped international concerns. In 1888, Congress took exclusion even further and passed the Scott Act, which made reentry to the United States after a visit to China impossible, even for long-term legal residents. The Chinese Government considered this act a direct insult, but was unable to prevent its passage. In 1892, Congress voted to renew exclusion for ten years in the Geary Act, and in 1902, the prohibition was expanded to cover Hawaii and the Philippines, all over strong objections from the Chinese Government and people. Congress later extended the Exclusion Act indefinitely.

…The Chinese Exclusion Acts were not repealed until 1943, and then only in the interests of aiding the morale of a wartime ally during World War II.

The Encyclopedia Britannica analyzed the Chinese Exclusion Act, passed by Congress in 1882, as having “prohibited Chinese labourers—defined as ‘both skilled and unskilled laborers and Chinese employed in mining’—from entering the country. Subsequent amendments to the law prevented Chinese labourers who had left the United States from returning.”

Wong Kim Ark was born in San Francisco, CA in 1873 to two parents allowed to enter the U.S. to “carry on business” years before his birth.  Having left the U.S. to visit China twice, upon returning the second time, Wong Kim Ark was not allowed to debark, but rather, taken into custody as a non-U.S. citizen.

The high court cited the text of the 14th Amendment in its ruling on the case.   Some believe that Wong Kim Ark was decided in error.  “Subject to the jurisdiction thereof means political attachment,” The Federalist Blog stated, citing the U.S. Supreme Court case of Elk v. Wilkins.

During his interview with Kelly, Johnson pointed out that the court might have ultimately ruled as it did by reasoning that discrimination against Chinese immigrants as opposed to any other ethnic group was unfair, as he contended that sons and daughters of immigrants from many other countries who “jumped ship,” settled in the United States and became contributing citizens were granted citizenship.

The person who signed the Chinese Exclusion Act as president, Chester A. Arthur, is suspected of having been ineligible to serve given that his father may have been a British citizen at the time of his birth, thereby precluding Chester from “natural born Citizen” status, according to several constitutional scholars.

“What is the plain language of the 14th Amendment?…What was the discussion?” Johnson asked rhetorically during his analysis, opining that the children of illegal aliens were not intended beneficiaries of the citizenship conferred by the 14th Amendment’s framers.  “The constitutional argument today that’s being made is that the folks who are illegal immigrants, undocumented aliens, are not subject to the jurisdiction of the United States…” Johnson said, because they had not “sworn allegiance to the United States of America.”

Johnson agreed with Kelly’s citation of “the historians” who claim that the 14th Amendment was meant to confer citizenship to slaves and their descendants, describing the intent as “a narrow construction.”

“We’ve been letting it happen for decades,” Kelly responded, “but that doesn’t necessarily mean…”  “…that it’s constitutional,” Johnson finished.

A website dedicated to an analysis of the 14th Amendment states, “The United States did not limit immigration in 1868 when the Fourteenth Amendment was ratified. Thus there were, by definition, no illegal immigrants and the issue of citizenship for children of those here in violation of the law was nonexistent. Granting of automatic citizenship to children of illegal alien mothers is a recent and totally inadvertent and unforeseen result of the amendment and the Reconstructionist period in which it was ratified.”

Another writer bescribes birthright citizenship as “a fable that lives through ignorance.”

Over U.S. history, states legislatures have at times defined who is and is not a citizen.

Rep. Peter King (R-IA4) has introduced a bill to end “birthright citizenship,” invoking the clause of the 14th Amendment, “subject to the jurisdiction thereof.”  Others disagree that the amendment has been misinterpreted.

Article 1 of the U.S. Constitution sets forth the qualifications for U.S. representatives and senators, including a citizenship requirement. For representatives, “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”

In regard to U.S. senators, Section III, clause 3 states that “No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”

As of this writing, the official government archives displaying the U.S. Constitution in both text and graphic forms is dysfunctional.

Article II, dealing with the executive branch of government, sets forth the duties and qualifications of the president and commander-in-chief of the military.  The original citizenship requirement was suggested by Founding Father Alexander Hamilton as, “No person shall 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.”

As the Constitutional Convention proceeded in an effort to replace the Articles of Confederation for the new Republic, on July 25, 1787, Founding Father John Jay composed a letter to George Washington, president of the convention. In his letter, Jay wrote, “Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen.”

A scan of the original of Jay’s letter can be viewed here.

When the Constitution was ratified, the requirements for the president were stated as “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

The term “natural born Citizen” is used only for the chief executive and no other officer or representative of the United States.

In 2008, former New Mexico Governor Bill Richardson described Obama as “an immigrant.”  Newsweek once termed Obama an “anchor baby” while decrying the possibility of “altering the 14th amendment, the one that guarantees citizenship to anyone born on U.S. soil.”

Cruz claims presidential eligibility by virtue of his U.S.-citizen mother and not his birthplace or father’s citizenship.  Obama claimed eligibility by his stated birth in Hawaii which is as yet unproven given the determination by a law enforcement investigation that his proffered long-form birth certificate and Selective Service registration form are “computer-generated forgeries.”

If parents of “anchor babies” without allegiance to the United States might preclude U.S. citizenship to their child, what does a presidential candidate require for eligibility under the presumably higher standard of “natural born Citizen?”

Are the “birthers” wrong in questioning Obama’s eligibility? Cruz’s? Rubio’s? Jindal’s?  Or are they historically correct?