I received an e-mail from one of the students of my Constitution Class in Temecula, California asking about eligibility. She is still having trouble grasping the definition, largely because the education system and media has been sending us mixed messages on the issue. The following is my reply:
Your first premise is wrong. You said to be a natural born citizen both parents have to be born here. That is not correct. To be a natural born citizen both parents need to have been citizens at the time of birth of the child. Citizenship is not only just being born here. If my wife had naturalized as a citizen before our kids were born, they would be natural born citizens, but she didn't naturalize until after they were born, making them only native born citizens.
In some circles it was just the father that needed to be a citizen, but reading Vatell's Law of Nations, it needs to be both parents, in order for someone to be a Natural Born Citizen.
If a child is born here of non-citizen parents their citizenship depends on the jurisdiction of the parents. For example, my wife's sisters were born here in the United States, but their parents were not citizens. However, they were here legally on resident alien cards (green cards) which means the parents fell under the full jurisdiction of the United States. Therefore, despite my wife's sisters being born to non-citizen parents, they are citizens because the parents were here as legal residents. Note that they are not natural born citizens, because their parents were not citizens at the time of their birth.
Yes, Marco Rubio's parents were not citizens of the United States at the time of his birth. Like Virginia's sisters, he is a citizen because Rubio's parents were legal residents of the United States. However, because they were not citizens at the time of his birth, he is not a natural born citizen, making him ineligible for Vice President (Vice President must also meet eligibility requirements of President).
Blessings,
Douglas V. Gibbs
www.politicalpistachio.com
www.douglasvgibbs.com
Constitution Radio, KCAA, KCXL, WHTH
-- Political Pistachio Conservative News and Commentary
Dear Doug
ReplyDeleteWithout spending too much time revisiting the fact that Congress has never defined "Natural Born" - and given you and Loki's acceptance of Blackstone's Commentaries as a good source of the common law, I thought you might be interested in this:
http://www.lonang.com/exlibris/blackstone/bla-110.htm
Blackstone states natural born subjects (the name for citizens before the US Republic) are born within the dominions of the Crown.
Your friend Vattel was Swiss. You will appreciate that the Swiss do not have common law - they have Civil law - which is derived from the Roman Code.
Loki is right to quote Blackstone's commentaries as a valid record of the common law - as these legal postulates underpinned their drafting of the US Constitution.
You can tie yourself up in knots, but it is really, really simple - as Blackstone as all of the SCOTUS justices since have explained.
Re both parents have to be citizens. That is wrong. The meaning of Natural Born comes from the common law and refers to the PLACE of birth, not the parents.
ReplyDelete“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.]
First of all, using English common-law on some issues is part of the problem. Remember, the new United States wanted to be different from Britain because they viewed the British way of going about things to be in error, and to be tyrannical against the people. So, though there may be some commonalities, for the most part the Americans set out to set up a society as different from Britain as possible. As for Vatell's Law of Nations, Franklin purchased three copies. One for himself, and two for the convention. Washington borrowed a copy from the New York Public Library in 1789, but never returned it. Mt. Vernon gave one of their copies back to the library about a year ago.
ReplyDeleteAs for legal precedent: 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. (Minor v. Happersett, 88 U.S. 162, 167 [1874])
http://www.kerchner.com/protectourliberty/goatsledge/20081212%20Law%20of%20Nations.pdf
http://www.reuters.com/article/2010/05/20/us-library-washington-idUSTRE64J4EG20100520
Additional note: Natural Born was not defined because it was commonly understood.
ReplyDeleteRe: "As for legal precedent: 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. (Minor v. Happersett, 88 U.S. 162, 167 [1874])"
ReplyDeleteThat is a shortened quote, possibly deliberately shortened so as not to show the KEY sentence. The complete quotation reads:
"The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain 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 [88 U.S. 162, 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. "
When the Supreme Court says "it is not necessary to solve these doubts," that means that it is NOT MAKING A DECISION.
The Minor vs Happersett case is not a decision on the definition of Natural Born Citizen.
Moreover, it never discusses the term Natural Born, unlike the Wong Kim Ark case, which followed it (and hence would have OVERTURNED Minor vs Happersett, if Minor vs Happersett was a ruling, which it wasn't).
Continuing:
ReplyDeleteThat is why virtually every constitutional scholar and lawyer calls the Minor vs Happersett quotation on Natural Born Citizen "dicta"--meaning that that it is not a ruling.
In contrast, the Wong Kim Ark ruling spends considerable time discussing the term Natural Born, which it concludes came FROM THE COMMON LAW, and which it concludes refers to the PLACE OF BIRTH. That is the ruling of six Supreme Court justices (the vote was six to two, one not voting).
Douglas V. Gibbs said:
"Natural Born was not defined because it was commonly understood."
Answer: We are in total agreement. The meaning of Natural Born was commonly understood to have come from the COMMON LAW (the writers of the US Constitution were mainly lawyers. John Jay [who wasn't in Philadelphia, but did use the term] even wrote the common law into the first Constitution of the State of New York [1777], making the common law the law of New York until a New York law replaces it).
And here is an actual example of how the term was used in America (not Switzerland) in 1803, shortly after the US Constitution was written:
"Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. ...St. George Tucker, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)
As you can see, the term Natural Born Citizen refers only to the place of birth (which the US Supreme Court stated in the Wong Kim Ark ruling). There is no reference to parents. Natural Born Citizens were "those born within the state."
And here is how it was used in 1829:
"Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity."---William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
And you cannot find (I know, I searched) in the complete writings of Alexander Hamilton, John Jay, James Madison and John Adams (And James Wilson, another prominent lawyer who attended the Constitutional Convention) ANY quotation that uses the term Natural Born as used in Vattel. However, there are several cases in which it is used as in the common law.
And Vattel is not even mentioned once in the Federalist Papers, while the common law is mentioned about twenty times.
Re: "Remember, the new United States wanted to be different from Britain because they viewed the British way of going about things to be in error, and to be tyrannical against the people. "
ReplyDeleteYes, but they were lawyers, and loved the common law. That is why it is mentioned so many times in the Federalist Papers, and as I said, John Jay actually wrote the common law into the first Constitution of New York state. It provides that the common law continues to be the law in New York unless and until changed by a New York law.
Moreover, in this situation it is not a matter of adopting the British common law. The issue is simply whether they used the term Natural Born as it was used in the common law. The examples from Tucker and Rawle and the lack of the use of the term in the Vattel way in any of the writings of prominent leaders at the time indicates that, for sure, they used it the way that it was used in the common law.
Sure, they read Vattel. But no translation of Vattel included the words Natural Born Citizen until ten years after the Constitution was written. And, they read a LOT of other things too. In particular, they read Blackstone, whose book on the common law was very popular at the time (even more popular than Vattel's), and in it Blackstone said that every child born in the country except for the children of foreign diplomats and enemy invaders was NATURAL BORN.
And that, of course, is what we hold these days too.
“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..."---- 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.]
The Meese quotation is similar to the findings in the Wong Kim Ark case, and similar to the use of the term Natural Born Citizen by Tucker and Rawle. And, so is this:
“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).
And, so is this:
“At the time of independence, and at the time of the framing of the Constitution, the term “natural born” with respect to citizenship was in use for many years in the American colonies, and then in the states, from British common law and legal usage. Under the common law principle of jus soli (law of the soil), persons born on English soil, even of two alien parents, were “natural born” subjects and, as noted by the Supreme Court, this “same rule” was applicable in the American colonies and “in the United States afterwards, and continued to prevail under the Constitution ...” with respect to citizens. In textual constitutional analysis, it is understood that terms used but not defined in the document must, as explained by the Supreme Court, “be read in light of British common law” since the Constitution is “framed in the language of the English common law.”--- Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement, Jack Maskell, Congressional Research Service, November 2011.
And so is this:
“Based on the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person “born within the British dominions [was] a natural born-born subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States [ ] natural-born citizens.”--- Ankeny v. Governor of the State of Indiana, 916 NE2d 678, 688 (2009), (Ind.Supreme Court, Apr. 5, 2010)
http://politicalpistachio.blogspot.com/2012/02/definition-of-natural-born-citizen-all.html
ReplyDelete