By Mario Apuzzo, Esq.
Tuesday, May 1, 2012
Read this article entitled, “Bret explains “natural born citizen” requirements for president and vice president, posted at Daily Bret -FoxNews.com . The post is by a Katy Ricalde. She posts the argument of Bret Baier as to how a “natural born Citizen” is defined. Baier argues that since the Constitution does not define a “natural born Citizen,” the Constitution allows Congress to do so through its naturalization statutes such as those found at 8 U.S.C. Sec. 1401 et seq. He concludes that any Congressional Act which makes one a “citizen of the United States” from the moment of birth is a “natural born Citizen,” regardless of where or to whom born. He concludes:
“That is how legal experts interpret the ‘natural born’ requirement.. and how you get that status is actually pretty open. Until the Supreme Court weighs in on this issue (and there are no plans that we know of that that will happen)… — to your emails… Senator Marco Rubio and Governor Bobby Jindal are both eligible to run and become Vice President or President.”
There are several problems with Mr. Baier’s argument:
1. He fails to understand that “Citizens of the United States” and their “natural born Citizen” children already existed since after July 4, 1776 and before the Constitution was adopted in 1787. The Founding generation knew who those citizens were. That generation abandoned the English feudal and monarchical notion of subject-hood and perpetual allegiance to the King. They replaced the notion of membership in the civil society by calling their members “citizens” and “natural born Citizens” rather than “subjects” and “natural born subjects” and providing that children followed the political condition of their parents who by free will selected that condition for them until their age of majority at which time they were free to accept or change that choice, not that of some King without choice and for life. While the Constitution itself does not define a “natural born Citizen,” historical evidence and case law from the U.S. Supreme Court and other courts do so. That evidence shows that a “natural born Citizen” is a child born in the United States to parents who at the time of their birth were both either “natural born Citizens” or “citizens of the United States.” See my blog at http://puzo1.blogspot.com/ for a discussion of this historical evidence and case law.
2. Regarding Presidential eligibility, Article II, Section 1, Clause 5 provides:
“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.”
This eligibility clause shows that the Framers during the period that the grandfather clause of Article II, Section 1, Clause 5 was in effect (for births prior to the adoption of the Constitution), allowed naturalized citizens to be eligible to be President. After the grandfather clause expired (for births after the adoption of the Constitution), it was no longer sufficient to be simply a “citizen of the United States” to be eligible to be President, for such citizens also include naturalized citizens. Rather, one had to now show that one was a “natural born Citizen” which was not a naturalized citizen by any positive law.
3. The Founders and Framers required that future Presidents and Commanders in Chief of the Military be “natural born Citizens” so as to assure that they would be born with undivided and sole allegiance and love of country only to the United States. This was needed as a “strong check” on foreign influence (John Jay letter of July 25, 1787 to George Washington) and to make sure that foreign nations could not “raise a creature of their own to the chief magistracy of the Union.” Alexander Hamilton, The Federalist, No. 68. Persons who are “citizens of the United States,” as Mr. Baier includes as “natural born Citizen,” but not “natural born Citizens,” as correctly defined under American common law, are born with dual and conflicting allegiances. They are not born with unity of allegiance and citizenship to the United States. The Founders and Framers simply did not put their trust in such persons to take over the singular and great powers of the presidency and commander in chief of the military.
4. The Constitution on matters of citizenship in Article I, Section 8, Clause 4 gave Congress the power only to naturalize persons to become “citizens of the United States.” This power could not and does not include the ability to define a “natural born Citizen” any differently than how the People who adopted the Constitution defined that term. To give Congress such power would give it power to change the presidential eligibility requirements of Article II, Section 1, Clause 5 without constitutional amendment. So the Constitution gave power to Congress to add through naturalization more citizens to the original “Citizens of the United States” and “natural born Citizens.” But such power did not include the power to make more “natural born Citizen” other than by birth in the United States to citizen parents. We can see that Congress only uses the clause “citizen of the United States” in its naturalization acts, including the statutes cited by Mr. Baier. In none of the statutes cited by Mr. Baier do we see the clause “natural born Citizen.”
5. Mr. Baier would like for us to believe that all “legal experts” agree with him. That is an outlandish claim.
6. Mr. Baier would like for us to believe that his legal position is the status quo and that only by the U.S. Supreme Court changing it will the law change. The truth is that there is no U.S. Supreme Court decision that agrees with his position. Hence, what he says is not the legal status quo. Rather, the last time the U.S. Supreme Court ruled on the matter as to what is a “natural born Citizen” was in Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) (decided after the Fourteenth Amendment was adopted in 1868 and holding 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”). What Minor said about a “natural born Citizen” was confirmed in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (acknowledging and confirming Minor’s American common law definition of a “natural-born citizen” but adding based on the English common law that since “‘[t]he child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle [birth in the country]’” (bracketed information supplied), a child born in the United States to domiciled alien parents was a Fourteenth Amendment “citizen of the United States”). This American common law definition of a “natural born Citizen” has never been changed, not even by the Fourteenth Amendment (only uses the clause “citizen of the United States” and does not mention “natural born Citizen”) or Wong Kim Ark, and therefore still prevails today. Both those U.S. Supreme Court cases define a “natural born Citizen” as a child born in a country to parents who are citizens of that country. Hence, it is Mr. Baier who needs a U.S. Supreme Court decision to change the current status of the law, not us who know what the law is.
Based on the current state of the law as presented by the historical record and our U.S. Supreme Court, putative President Barack Obama (born to a British/Kenyan father in an undetermined location), Senator Marco Rubio (born to Cuban parents in the United States), and Senator Bobby Jindal (born to Indian parents in the United States) are all not “natural born Citizens.” That means that under Article II, Section 1, Clause 5, none of them are eligible to be elected President or Vice-President.
Mario Apuzzo, Esq.
May 1, 2012
Copyright © 2012
Mario Apuzzo, Esq.