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“BIRTH IS A CRITERION OF ALLEGIANCE”
by Ron Smith, ©2016
(Feb. 19, 2016) — There has been a lot of information lately about the definition of what is and what isn’t a ‘natural born Citizen’, but very little said about WHY that pesky little phrase was in the Constitution in the first place.
Here’s my take, and while not meant to be an exhaustive study of the issue, it does pull together some simple concepts that in my opinion, we can reasonably draw from to form a clear understanding of why the term was included. For the sake of brevity, I’m only considering the ‘place of birth’ reasons in this article. Parentage is a whole other issue.
To start, probably the single-best summary of why the clause was inserted into the presidential requirements can be found in the Federalist Papers, and was written by key Founder Alexander Hamilton less than one year after the signing of the Constitution:
“Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?”
Similarly, St. George Tucker, an early federal judge, wrote in his 1803 edition of William Blackstone’s Commentaries on the Laws of England, that the natural born citizen clause is “a happy means of security against foreign influence” and that “the admission of foreigners into our councils, consequently, cannot be too much guarded against.”
One of the guiding principles in the minds of the Founders was their familiarity with what happened in England. Constitutional scholar Akhil Amar points out that the laws of England specifically allowed a foreign-born head of state, and that this had been an unhappy experience for many who had immigrated to the United States. There was also a perception that a usurper from the European aristocracy could potentially immigrate and buy his way into power.
James Madison, also known as the ‘father’ of the Constitution said this:
“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other”.
And from a military perspective, Founder and first Chief Justice of the Supreme Court John Jay said:
“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 expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen”.
Sole Control of The Military Weighed Heavily
Today, of course, we’re very comfortable with the term “Commander-in-Chief” because we’ve always thought of the president having that title as the head of the U.S. military, but that was a radical idea at the time. The founders set up our new government that way because they were all too familiar with the historical problems in other countries of trying to wage war by ‘committee’.
But with the granting of that enormous power to just one person, Jay’s concern of course was leaving open the door to a foreigner who would have SOLE control of the new nation’s military, and to him, that was simply unacceptable.
As further evidence of that concern, that’s also why the requirement to be a natural born Citizen was NOT required of other government officials (IE, members of Congress) because they did not have unilateral control of the military. All other officers of the new government were only required to be ‘regular’ citizens, versus natural born.
So based on the above, we can easily see that the reason the phrase was added in the final draft of the document was to protect our nation against ‘foreign influence’ in government, or worse, foreign control of the military.
Applied Logic – Two Key Questions
Accordingly, the critical question then to answer is who the Founders considered as ‘foreigners’.
Just as the term ‘natural born’ is not defined in the Constitution, the term ‘foreigner’ is not defined either in any of 4,543 words that make up the four-page document. So, we have to look for other clues to discern the meaning of the term as the Founders intended.
Let’s go back to Jay’s letter for a simple “if/then” pattern that we can reasonably pull together with simple logic:
1. Jay said we should provide a ‘strong check’ into having foreigners in government.
2. He also said the “Commander-in-Chief” shall not be anyone but a ‘natural born citizen’.
3. Therefore, if you’re a foreigner, then you can’t also be a natural born Citizen because otherwise, Jay would have been talking in circles and the ‘cure’ he recommended would have been useless.
But, to fully understand the issue, we can’t stop there because we’re still left with what is the complete meaning of the word “foreigner” that Jay and others were warning us about. Again, let’s use simple logic:
1. At the time Jay wrote his note a few weeks prior to the final draft of the Constitution being signed, it was already understood that the president would obviously need to be a citizen, and have lived in the U.S. for at least 14 years (and be at least 35 years old).
2. Therefore, if the base qualification for the office of president required residency AND citizenship, then that means even those two requirements did not defeat the issue of a person still labeled as a ‘foreigner’ if they were in fact born outside the U.S. If those two requirements would have had that effect, then Jay’s warning would have been senseless and unnecessary.
3. That means that Jay believed that people were still ‘considered as’ foreigners (IE, foreign-born Americans) even AFTER having lived in the U.S for at least 14 years, and becoming a U.S. citizen.
So when you add it all up, it’s clear that the reason that the term ‘natural born Citizen’ was inserted into the Constitution was to prevent foreign-born U.S. citizens to ever have sole command of the U.S. military.
In other words, Canadian-born American Ted Cruz cannot be president of the United States.