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by Bruce McKay, ©2015

(Nov. 25, 2015) — Once again, this Presidential Campaign season, the electorate is being confronted with the Presidential eligibility issue.  Republican candidates, Sen. Ted Cruz and Sen. Marco Rubio, and until recently, Gov. Bobby Jindal, have questionable credentials with regards to the Constitution’s Article II requirements to be President.    A number of articles by journalists, pundits and Professors have been written citing US statutory law and recounting a history of how the term natural born citizen has been interpreted here in the US purporting to show that the two Republican Senators are in fact Constitutionally eligible to hold the highest office in the land.  Missing from these missives, however, seems to be an attempt to understand the position taken on the nature of the citizenship of people like Senators Cruz and Rubio, by the one body Constitutionally empowered to interpret Constitutional issues.  The purpose of this editorial is to see what the Court’s point of view is on this matter.

If there’s a Constitutional question, then Article III Section 2 of the Constitution says “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact,…” As the US Supreme Court itself says on its website, “As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution” [See: http://www.supremecourt.gov/about/constitutional.aspx] In short, The United States Supreme Court is the one body Constitutionally empowered to determine what’s Constitutional in our system of government.

Consequently, if there is a conflict between what’s said by the Court or its members and something stated in a blog, news article or even by a distinguished professor of law authoring an article in a prestigious law journal, the greater authority belongs to those declarations made by members of the Court, particularly those declarations made in the process of delivering a majority opinion in a case before the Court.  As such, the Court has not only given us guidelines as to who are considered to be “natural born citizens” under the Constitution, but they have also made clear some of those who are NOT natural born citizens under the Constitution.

I first of all want to address the matter of Ted Cruz’s citizenship.  Most people will approach this from the standpoint that he doesn’t fit the profile of a “natural born citizen” arguing that he wasn’t born on US soil to two citizen parents [or in some quarters, simply not born to two citizen parents or to a citizen father].  Those taking the opposing position argue that since he became a citizen at birth under US statutory law that he never underwent naturalization and therefore must be a natural born citizen.

There’s ample indication, however, that members of the US Supreme Court have consistently taken the position that foreign born children of US citizens who acquire their citizenship by means of Congressional enactments are considered by members of the Court to be “naturalized citizens.”

Two cases in particular help to illustrate this point, Montana v. Kennedy along with Rogers v. Bellei.  Those two Supreme Court cases along with the case of Zimmer v. Acheson which was decided in the US Court of Appeals for the 10th Circuit demonstrate that statutory citizenship is in fact a form of “naturalized” citizenship.

In the case of Montana v. Kennedy, the facts of the case were that Mauro Montana was born in Italy in 1906 to a father who was an Italian citizen and a mother who was a native-born US citizen.  His mother brought him to the United States the year following his birth, he was never naturalized, and he resided in the US until he was ordered deported as an alien.  His case came before the Supreme Court in 1961 which held that Mauro Montana was not a US citizen. [See: http://caselaw.findlaw.com/us-supreme-court/366/308.html]

By contrast, in the case of Rogers v. Bellei, the facts of the case were that Aldo Bellei was born in Italy in 1939 to a father who was an Italian citizen and a mother who was a native born US citizen.  Further listed as a fact in the case opinion was that he “acquired United States citizenship at his birth under Rev.Stat. § 1993, as amended by the Act of May 24, 1934, § 1, 48 Stat. 797, then in effect.” [See: http://caselaw.findlaw.com/us-supreme-court/401/815.html] (The issue before the Court was whether Bellei was subject to losing his citizenship because he hadn’t fulfilled the statute’s residency requirements, but the point is that the Court considered him to be a citizen.)

The only difference in circumstances between the two men, born 33 years apart was that the amendment to the Rev.Stat. § 1993 that passed in 1934 allowed for citizenship to be conferred to children of US citizen mothers whereas previously it was only applicable to children of US citizen fathers.

The case of Zimmer v. Acheson can shed some degree of understanding here on the meaning of the Rogers v. Bellei case and its relationship to the nature of the citizenship of Ted Cruz.  In that case, Harry Ward Zimmer, who was born in Bavaria to a naturalized US citizen father, Werner Herman Zimmer, and a native-born US citizen mother was acknowledged by the court to have acquired his citizenship under Revised Statutes § 1993, the very same statute by which Aldo Bellei acquired his citizenship.  Chief Judge Phillips, writing the opinion of the Court said, “If Werner Herman Zimmer, by virtue of his naturalization on October 30, 1896, was a citizen of the United States on August 9, 1905, the date of the birth of Harry Ward Zimmer, then the latter, at the time of his birth, became a citizen of the United States by virtue of the foregoing statute, but his status as a citizen was that of a naturalized citizen and not a native-born citizen.” [See: https://www.courtlistener.com/opinion/227742/zimmer-v-acheson-secretary-of-state/?q=Zimmer+v.+Acheson&order_by=score+desc&stat_Precedential=on]

U.S. Supreme Court Associate Justice Harry Blackmun was appointed by President Richard Nixon and served from 1970 to 1994

Returning to the Bellei case, Justice Blackmun, in delivering the majority opinion in the 1971 case of Rogers v. Bellei stated “But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.” [Citing Justice Gray’s opinion in the 1898 case of US v. Wong Kim Ark – See: https://www.law.cornell.edu/supremecourt/text/169/649] He points out that the citizenship of the plaintiff, Aldo Bellei was “wholly statutory” observing “The plaintiff’s claim thus must center in the statutory power of Congress and in the appropriate exercise of that power within the restrictions of any pertinent constitutional provisions . . . The Court has recognized the existence of this power. It has observed, “No alien has the slightest right to naturalization unless all statutory requirements are complied with.” [Citing Justice McReynolds’ majority opinion in the 1917 case of US v. Ginsberg – See: http://caselaw.findlaw.com/us-supreme-court/243/472.html]  The Court went so far as to point out that Bellei’s citizenship rested purely on a statute which rested purely on Congress’ power to “naturalize.” In short, but for the generosity of Congress passing enactments conferring citizenship at birth upon children born abroad to US citizens, those children would be considered aliens.

Even those dissenting in the Bellei case were of a like opinion on the nature of Bellei’s citizenship. After noting that “Bellei became an American citizen under the terms of § 1993 of the Revised Statutes, as amended”, Justice Black stated, “Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word “naturalize” in this way has a considerable constitutional history. Congress is empowered by the Constitution to “establish an uniform Rule of Naturalization,” Art. I, 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.”  He later continued in noting “All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization.”  And in commenting on the majority opinion, Justice Black observed, “The majority opinion appears at times to rely on the argument that Bellei, while he concededly might have been a naturalized citizen, was not naturalized “in the United States.”.” . . . So the principal dissenting opinion ALSO thought Bellei was “naturalized”.

And finally, Justice Brennan opines “Concededly, petitioner was a citizen at birth, not by constitutional right, but only through operation of a federal statute. . . . distinguishing among citizens whose naturalization was carried out within the physical bounds of the United States, and those, like Bellei, who may be naturalized overseas. . . ”

There was NO difference of opinion amongst the members of the Court as to the mechanism by which Aldo Bellei acquired his citizenship.  It was by Congress’ power to establish rules of “Naturalization” and as such, the entire Court considered him a “naturalized” citizen.  The dispute among the members pertained to whether his citizenship enjoyed 14th Amendment protections, but not whether or not he was naturalized.

That’s also consistent with Justice Gray’s opinion over 70 years earlier in the case of US v Wong Kim Ark when he stated “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, … by authority of Congress, exercised … by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens …” [See: https://www.law.cornell.edu/supremecourt/text/169/649] That statement clearly indicates that children of citizens who are born outside US Territory, who gain their citizenship by Congressional statute are naturalized. In other words, simply having citizen parents isn’t enough to make a natural born citizen!

As further evidence that Aldo Bellei was a “naturalized citizen”, please note that his citizenship was stripped from him for not complying with statutory residency requirements.  In the 1949 case of Klapprott v. United States, Justice Black in delivering the judgement of the Court observed “To take away a man’s citizenship deprives him of a right no less precious than life or liberty, indeed of one which today comprehends those rights and almost all others. . . . No such procedures could strip a natural-born citizen of his birthright or lay him open to such a penalty.”

Klapprott was a naturalized citizen who stood to have his citizenship stripped from him in essence for failure to answer a complaint that his original oath of allegiance was false.  Justice Hugo Black, addressing Kapprott’s circumstances, states that a “natural-born citizen” does NOT face the danger of having his citizenship stripped from him. [See: https://supreme.justia.com/cases/federal/us/335/601/case.html]

In the Rogers v Bellei case, Aldo Bellei, like Ted Cruz, was born outside US territory. Aldo Bellei, like Ted Cruz, had a father who was NOT a US citizen. Aldo Bellei, like Ted Cruz, had a US citizen mother who provided a pathway to statutory US citizenship at birth. Aldo Bellei, was considered by the entire Court to be a naturalized citizen.  If Aldo Bellei was a naturalized citizen, then Ted Cruz must also be a naturalized citizen. Naturalized ≠ Natural Born

Part of the reason I spent so much of this writing on Ted Cruz’s circumstances is because it also furnishes the basis for the starting point on the nature of Marco Rubio’s and Bobby Jindal’s citizenship.

Consider . . .

Article II, Section 1, clause 5 of the U.S. Constitution as it appears in the National Archives publication

No amendment to the US Constitution has been ratified that has changed either the requirements for the Presidency listed in article II of the Constitution or the definition of the meaning of “natural born citizen.” Therefore, what constitutes a “natural born citizen” today is the same thing that constituted a “natural born citizen” in 1788 when the Constitution was ratified. It’s evident that if someone is legitimately a “natural born citizen” today, then they also would have been considered a “natural born citizen” when the Constitution was ratified in 1788.

The unanimous opinion of the Court, written by Chief Justice Waite, in the case of Minor v. Happersett was that “natural born citizens” are “citizens.” This is borne out by his statement “. . . 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 . . .” [See; https://www.law.cornell.edu/supremecourt/text/88/162] It stands to reason then that if someone is not a citizen, then they are also not a natural born citizen.

Justice Blackmun, in writing the opinion of the Court in the case of Rogers v. Bellei observed “The application of these respective statutes to a person in plaintiff Bellei’s position produces the following results: . . .

. . . Not until 1934 would that person have had any conceivable claim to United States citizenship. For more than a century and a half, no statute was of assistance. Maternal citizenship afforded no benefit. One may observe, too, that, if Mr. Bellei had been born in 1933, instead of in 1939, he would have no claim even today. Montana v. Kennedy, supra.” [See: http://caselaw.findlaw.com/us-supreme-court/401/815.html]

As we’ve seen, Ted Cruz’s citizenship was acquired by precisely the same mechanism as Aldo Bellei’s citizenship. If a natural born citizen today is the same as a natural born citizen was in 1788, and if someone whose nativity circumstances matching those of both Aldo Bellei and Ted Cruz wouldn’t even have been a citizen until 1934, how, then, could Ted Cruz be considered to be a “natural born citizen?” Answer: He couldn’t. QED

So what about those born in the US without benefit of citizen parents who automatically become citizens under the 14th Amendment?

As implied earlier, the 14th Amendment makes no mention of “natural born citizens” or of the Presidential requirements of Article II sec. 1 cl. 5.  Therefore, while the 14th Amendment may confer citizenship at birth to those who wouldn’t otherwise qualify for citizenship, it doesn’t confer the character of “natural born” citizenship upon those whose citizenship is wholly dependent upon the 14th Amendment.

In the Wong Kim Ark decision in section V, Justice Gray states, “The Civil Rights Act, passed at the first session of the Thirty-ninth Congress, began by enacting that:

all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . . The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution . . .” [See: https://www.law.cornell.edu/supremecourt/text/169/649]

Consequently, the civil rights act of 1866, passed by Congress, which the 14th amendment codified into the Constitution, effectively naturalizes those covered by that act at birth.  That’s why Justice Gray makes the point he does in Section VI that Congressional power to create citizens can only occur by its power to create a uniform rule of naturalization.  Justice Gray is stating that it’s by means of Constitutional guidelines by which Congress, acting within its constitutional powers can legislatively declare an entire class of people to be naturalized citizens at birth.

Based on the guidelines as laid out in section VI of the Wong Kim Ark decision by Justice Gray, those born on US soil without benefit of citizen parentage were made naturalized citizens at birth, by Congressional statute in the Civil Rights Act of 1866.  This was later elevated to a Constitutional right by the 14th Amendment.

U.S. Supreme Court Chief Justice Morrison Waite served from 1874 to 1888

It should be noted that Justice Gray observed, “In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: ‘The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.'”  Consequently, according to both Justice Gray and Justice Waite, the Fourteenth Amendment does NOT address natural-born citizenship.  Justice Gray also observes that “[t]he Fourteenth Amendment, … leaves the power where it was before, in Congress, to regulate naturalization…”  The Fourteenth Amendment, therefore, does not change Congress’ Constitutional power over naturalization, either.  Thus, mere birth within the territory of the United States, without regard to the parentage of the child, is not sufficient by itself to make the child a “natural born” citizen.

Indeed, despite the fact that Justice Gray spent a fair amount of time talking about “natural born subjects” in his case opinion, he does not declare Wong Kim Ark to be a natural born citizen, but instead held that he was a “citizen” by virtue of the first clause of the 14th Amendment. Justice Gray indicated “The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution,

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.” [See: https://www.law.cornell.edu/supremecourt/text/169/649]

That holding was acknowledged in the 1967 case of Afroyim v. Rusk, by Justice Hugo Black delivering the opinion of the court who made the following observation about Justice Gray’s opinion in the US v. Wong Kim Ark case, “ . . . whether a person born in the United States to Chinese aliens was a citizen of the United States and whether, nevertheless, he could be excluded under the Chinese Exclusion Act, 22 Stat. 58. The Court first held that, within the terms of the Fourteenth Amendment, Wong Kim Ark was a citizen of the United States . . . The Court then held that Congress could not do anything to abridge or affect his citizenship conferred by the Fourteenth Amendment. Quoting Chief Justice Marshall’s well considered and oft-repeated dictum in Osborn to the effect that Congress, under the power of naturalization, has “a power to confer citizenship, not a power to take it away,”. . . “[See: See: https://www.law.cornell.edu/supremecourt/text/387/253]

Both the author of the opinion for the case of US v. Wong Kim Ark, as well as the author of another citizenship case opinion by the Supreme Court, roughly 70 years later, have indicated that the WKA opinion was about citizenship by virtue of the first clause of the Fourteenth amendment. Neither of them indicate that Wong Kim Ark was a “natural born” citizen, only a “citizen.”

Therefore, if Wong Kim Ark, born on US soil to parents who were not US citizens, was only a “citizen” by virtue of the first clause of the 14th Amendment, and not, at least according to any Supreme Court opinion I’ve been able to find, a natural born citizen, by the same token, neither Marco Rubio nor Bobby Jindal are anything more than “citizens” by virtue of the first clause of the 14th Amendment.

As pointed out earlier, based on both Justice Gray’s guidelines, and those which were reiterated by Justice Blackmun in Rogers v. Bellei, those born of citizen parents without benefit of being born on US soil were naturalized citizens at birth by congressional statute.  Therefore, neither born on US soil alone nor born to citizen parents alone is sufficient to create a natural born citizen since in both instances, prior to the Fourteenth Amendment, congressional action was necessary to naturalize each of those classes of people at birth.

What, then, is a natural born citizen?  As previously mentioned, Chief Justice Waite delivering the unanimous opinion of the Court in the case of Minor v. Happersett observed, “…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 . . .” [See; https://www.law.cornell.edu/supremecourt/text/88/162] Simply put, a natural born citizen is one who is born in the United States to citizen parents.

Every instance I’m aware of in which the Supreme Court has either indicated someone is a natural born citizen of a nation/state or eligible to hold the office of President of the United States, notably Ann Shanks in the case of Shanks v. Dupont [See: http://caselaw.findlaw.com/us-supreme-court/28/242.html], Kwock Jan Fat in the case of Kwock Jan Fat v. White [See: http://caselaw.findlaw.com/us-supreme-court/253/454.html], Marie Elg and “young” Steinkauler in the case of Perkins v. Elg [See: http://caselaw.findlaw.com/us-supreme-court/307/325.html], and by implication, Virginia Minor in the aforementioned case of Minor v. Happersett, have been instances in which the person referred to by the Court was one who was born in the country to parents who were citizens.

By that metric, neither Senator Ted Cruz nor Senator Marco Rubio are eligible to legitimately hold either the office of President or Vice-President of the United States.