NATURAL BORN CITIZEN

by Bruce Dunlavy (My blog home page and index of other posts may be found here.)

For the third consecutive presidential election cycle, two words that would seem to have an obvious meaning are the source of arguments, accusations, and threats of lawsuits. In 2008 and 1012, the eligibility for office of candidates was questioned, Barack Obama in both years, and to a lesser degree John McCain in 2008.

In 2016, the controversy is about Texas Senator Ted Cruz, who is seeking the Republican nomination for president. Cruz was born in Canada to a Cuban father and an American mother. Is he then a “natural born” American citizen for the purposes of presidential eligibility? Some say yes, some say no, and one of his opponents in the battle for the nomination, Donald Trump, has semi-seriously threatened to sue Cruz over the matter. Whether Trump has standing to pursue a case is uncertain, but the issue is certainly arguable.

In 2008 a man sued McCain claiming his birth on a Navy base in the Panama Canal Zone (a part of Panama given over to U.S. administration from 1904 to 1979) meant he was not a “natural born citizen.” The suit was thrown out of court on the grounds that the man had no standing to sue. In response, Congress passed a non-binding resolution specifying that McCain is a natural born citizen.

Obama was elected president in 2008 and 2012, despite accusations that he was not a “natural born citizen” either because his father was a citizen of the United Kingdom (born in the UK colony of Kenya) or because, as the discredited “birther conspiracy theory” ludicrously contends, the president himself was born in Kenya.

Image credit: thepatriotfactor.blogspot.com

In order to pin down the definition of “natural born citizen” we can start with the phrase itself. In Article II, Section 1, the Constitution lays out the qualifications for the office of President of the United 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.” The framers of the Constitution looked for two things: loyalty and maturity. The president was expected to be old enough to have acquired wisdom, and to have allegiance to no other nation.

The problem for us today is that what the Constitution means by “natural born” citizen is not defined therein, and it has never been legally defined since. Nor do the notes of the Constitutional Convention mention any discussion of what the phrase means. There was, however, much discussion in the Convention about wealthy nobles of foreign nations coming to the USA and trying to buy/finagle their way into office (particularly the presidency), and it is that concern that gives some indication to the framers’ intent.

For a clue, let us look to the word “naturalization.” It appears in the Constitution earlier than the “natural born” phrase. Article I, Section 8, gives Congress the power “To establish an uniform Rule of Naturalization.” It is an easy inference that anyone who is a citizen at birth and therefore does not have to be “naturalized” to be a citizen must be a natural born citizen, since only aliens must be “naturalized.”

Congress took up the matter quickly, and passed the first law to address naturalization. The Naturalization Act of 1790 was passed early in the First Congress (1789-1791), stating that “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States” (citizenship descended through the father, primarily because in those days men had such power over their wives that they were the ones who determined where the family would live – including the father’s place of citizenship).

In that law a lot more was said about foreign titles of nobility. The framers were creating something new – the office of President.  No such office existed in any other country, and inherited, not elected, political power was the norm.  It was important at the time to weed out those who had an inherent interest in foreign governments; and the laws that succeeded that of 1790 – the Naturalization Acts of 1795 and 1798 – specified increased times of residency for citizenship eligibility to ensure that one would have developed a longstanding loyalty to the USA before being naturalized. Those two laws were more concerned with worries of a Johnny-come-lately foreign aristocrat who just dropped in for the purpose of trying to inveigle political power.  They also had a political purpose – that of reducing the number of anti-Federalist Party voters, who were more likely to be recent immigrants.

The 1790 law was the last American statute to use the phrase “natural born.” It was dropped in the superseding Naturalization Acts of 1795, 1798, and 1802, and does not appear in any law passed since.

In an article published in the Harvard Law Review in 2015,  Neal Katyal and Paul Clement (each of whom has headed the office of U.S. Solicitor General) argue that the framers of the Constitution intended to follow English laws of the time, and that it was clear from those laws and from Blackstone’s Commentaries – widely known to the framers and often referred to in discussions – that children born to citizens abroad acquired citizenship at birth, as expressly stated in the 1790 act. Of the eleven members of the Constitutional Convention Committee that drafted the qualifications for president, eight were members of that First Congress which passed the 1790 Act, and none of them had any concerns about the law’s use of the phrase “natural born,” so the intent of the Founding Fathers, say Katyal and Clement, should be clear.

The Federalist Blog, on the other hand, argues that the father’s citizenship is paramount (which would affect Cruz), because American citizenship was designed so that persons would not have multiple allegiances, particularly through the father. However, the USA recognizes dual (or multiple) citizenship, and many USA citizens (including those naturalized) hold citizenship in other countries.

The law that defines citizenship, 8 United States Code § 1401 elucidates much, but it does not elucidate the “natural born” issue. However, a report by the Congressional Research Service in 2011  came to the conclusion that “natural born” means “a citizen at the time of birth by meeting requirements for birth citizenship.” If so, as the first sentence of the Fourteenth Amendment makes clear, any person born in the United States (other than the children of foreign diplomats or invading soldiers) is an American citizen from birth.  Furthermore, anyone born outside the United States who had at least one parent who was an American citizen who had previously resided for a specified time in the USA, is an American citizen from birth.

It was important to the Founding Fathers, having just created a nation in a manner never tried before – revolt and self-government based on natural and civil law – that no titled aristocrats attempt to enter the United States to try to take over authority which could be then subordinated to foreign powers. This is not a threat today. No one would suggest that if a European-born naturalized American who has held important offices in this country, such as Arnold Schwarzenegger or Madeline Albright, somehow became president he/she would be beholden to Austria or the Czech Republic.

Which brings us back to Ted Cruz. Donald Trump says Cruz in ineligible to run for president because he is not a “natural born citizen.”

Donald Trump is wrong.

The Twentieth Amendment to the Constitution includes this passage in Section 3: “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify…” (emphasis mine). Thus the Constitution clearly says that someone who is not qualified (such as one who is not a “natural born citizen”) cannot only run for president, but can win the election.

It is quite possible that if anyone not eligible to the office is elected president, in the time between the election and the inauguration a Constitutional amendment could be passed and ratified allowing that person to take office. Thus anyone can run, anyone can win, and the mechanism exists to allow an unqualified winner to become qualified.