On November 8 of this year, American voters will go to the polls to elect a new chief executive who will also serve as commander-in-chief of the U.S. military as set forth in Article II, Section 2 of the U.S. Constitution.
Article II, Section 1, clause 5 of the U.S. Constitution concerning presidential eligibility states:
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.
As of 2008, most Americans’ understanding was that the president, as a “natural born Citizen,” must be born in the United States as opposed to having become a U.S. citizen by naturalization.
The “natural born Citizen” requirement was imposed only for the “command in chief of the american army,” as suggested in a letter from Founding Father John Jay to constitutional convention president and future first president of the United States, George Washington.
Because the Framers of the Constitution did not explicitly define the term, much controversy over the meaning has arisen over the years as various political figures have considered or declared their candidacies.
Several modern-day constitutional scholars believe that the term “natural born Citizen” indicates a higher level of citizenship and therefore allegiance to the nation than simply “citizen,” which is required for U.S. senators and representatives. Since Barack Obama entered the White House, the Congressional Research Service (CRS) has argued that the term can apply to several scenarios, including Obama’s. The media has also conflated the terms “natural born Citizen” and “citizen.”
Issues which have clouded the question of eligibility include the 14th Amendment, passed in 1866 and ratified by the states in 1868, which reads:
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 14th Amendment did not exist at the time of the ratification of the Constitution, nor did the naturalization laws cited by former solicitors general Neal Katyal and Paul Clement in their essay, “On the Meaning of Natural Born Citizen” published in the Harvard Law Review one week before Canadian-born U.S. Sen. Ted Cruz declared his candidacy for the presidency.
Katyal and Clement, both political appointees, reason in their commentary that anyone born anywhere in the world to one U.S.-citizen parent is eligible for the presidency because a naturalization process is not required for the person to hold U.S. citizenship. However, that interpretation fails to observe historical documentation, including “The Law of Nations” by Emmerich de Vattel, known to have been referenced heavily by the Framers both during and after the writing of the Constitution. Its pertinent part states:
§ 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…
Rep. John Bingham, considered the author of the 14th Amendment, said on the floor of the U.S. House of Representatives in 1866, “…every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen.”
While so-called “experts” cite the Naturalization Act of 1790 as having identified “natural born Citizens” to include children born in a foreign country of one or two U.S.-citizen parents, they disingenuously fail to reveal that that act was replaced in 1795, with the reference to “natural born citizens” removed.
Section 2 of the 1795 Act reads:
SEC. 3. And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization, and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States. No person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted as foresaid, without the consent of the legislature of the state in which such person was proscribed.
Regardless, acts of Congress passed subsequent to the ratification of the Constitution governed the admission of foreigners into U.S. citizenship after a requisite residency period and the swearing of an oath of allegiance rather than redefining the term “natural born Citizen” contained in Article II of the Constitution.
No fewer than five U.S. Supreme Court cases over the years have touched upon the meaning of who is and is not a “natural born Citizen.” In the 1875 case of Minor v. Happersett, the majority of the court wrote:
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain [***10] 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 [*168] 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.
Multiple attempts to change the “natural born” clause in Congress have thus far been unsuccessful. However, in the absence of a ratified constitutional amendment, the definition of “natural born Citizen” has been reinterpreted by the Congressional Research Service (CRS), former solicitors general, a number of law professors and others apparently wishing to see certain individuals seek the presidency unfettered by the circumstances of their birthplace and/or parentage.
Political expediency does not change the U.S. Constitution nor the Framers’ intent to exclude anyone with the potential of foreign influence from the office of the chief executive.