In Reply to Marco Rubio Eligible for President or Vice President? Inquiring Minds Want to Know

While I would have rather posted this as a comment on Marco Rubio Eligible for President or Vice President? Inquiring Minds Want to Know, the answer is too long for the comment section.   I wish I go back in time and have our Founding Fathers place in the Constitution the actual meaning of the words as they understood them, but we can’t.  You can find the original of this article here.

Prior to the adoption of the US Constitution, it was English Law that was in force. English Common Law to be precise gave each colonist his or her concept of citizenship and specifically Natural Born Citizenship.

For the definition of a “natural born subject”, William Blackstone (1723-1780), frequently cited for English Common Law, defined a “natural born subject” as follows:

“The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king;  and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government;the name and the form are derived to us from our Gothic ancestors.***The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.” William Blackstone, Commentaries 1:354, 357–58, 361—62.

As we can see, for children born within the King’s dominions and allegiance, they were considered “natural born subjects” without any consideration for the citizenship of their parents. On the question of what the Framers meant when they inserted the “Natural Born Citizen” clause in Article II, putative President Obama supporters argue that the Framers simply used the “natural born Citizen” clause in place of the English common law“natural born subject” clause. Hence, they argue that the clauses mean the same exact thing. In practical terms, they therefore argue that in the mind of the Framers mere birth on United States soil without any reference to the citizenship of the child’s parents (withexceptions for children of diplomats and of invading soldiers) made one a “Natural Born Citizen.” In support of their argument, they cite language in United States v. Wong Kim Ark, 169 U.S. 649 (1898). The quote is:

“‘And if, at common law, all human beings born within the ligeance of the king, and under the king’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States in all cases in which there is no express constitutional or statute declaration to the contrary.‘ ‘Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, ‘subjects,’ for we are equally bound by allegiance and subjection to thegovernment and law of the land.’ Id. 258, note.” United States v. Wong Kim Ark, 169U.S. 649, 664-65 (1898). (quoting Chancellor Kent’s Commentaries).

The authors of the Constitution were for the most part lawyers and judges deeply schooled in English Common Law, and had spent their entire careers working within its confines. Logic dictates that they would base their new legal system around the very law in which they knew. And they did. A very good example of this is the fact in the greater part of Europe a person is considered guilty of the crime they are accused of. They must prove their innocence. Under English and US law, a person is considered innocent of the crime and the State (or Crown) must prove his or her guilt. This is found no where in the Constitution, but is accepted as law.

This issue has arisen before in American politics:

Chester Arthur (born of an American mother and Irish father, purported birthplace of Canada) was sworn in as President, however his status as a “Natural born citizen” was challenged because he was born with British citizenship (therefore not jus sanguinis) and it is contended, on foreign soil (therefore not jus soli). Some argue that those born abroad to U.S. citizens are not eligible to ascend to the Presidency (not jus soli), since an act of the United States Congress such as the Naturalization Act may not overrule the Constitution (see “Natural born citizen” as presidential qualification). Presidential candidates George W. Romney (born in Mexico), Barry Goldwater and John McCain (born in U.S. territories), were never seriously challenged on the basis of their “natural born” citizenship, but no candidate falling under this classification has ever actually become President.

The other bemoaning is that the courts, especially the Supreme Court has no authority in the Constitution to decide whether a law is constitutional or not. That it is the President or even better the states who should decide the issue. What a recipe for disaster that would be. President Obama would declare every law he didn’t agree with unconstitutional, or you would have 50 different decisions from 50 different states. Inn one especially liberal state gun possession would be punished by life in prison, in another all drugs would be legal, in other abortion (including miscarriages) would be murder, in other it would be perfectly legal, and in Utah polygamy would be legal. Anarchy Rules!

Once again the answer results from English Common Law. Under English law the courts decide which laws are legal and which laws contradict early law without trying to change the earlier law.

Remembering that the founders were lawyers and judges who practiced under English Law, it is easy to see how this was adopted by the first court to prevent anarchy within the legal system.

The Judiciary Act of 1789 is passed by Congress and signed by President George Washington, establishing the Supreme Court of the United States as a tribunal made up of six justices who were to serve on the court until death or retirement. That day, President Washington nominated John Jay to preside as chief justice, and John Rutledge, William Cushing, John Blair, Robert Harrison, and James Wilson to be associate justices. On September 26, all six appointments were confirmed by the U.S. Senate.

The U.S. Supreme Court was established by Article 3 of the U.S. Constitution. The Constitution granted the Supreme Court ultimate jurisdiction over all laws, especially those in which their constitutionality was at issue. The high court was also designated to oversee cases concerning treaties of the United States, foreign diplomats, admiralty practice, and maritime jurisdiction. On February 1, 1790, the first session of the U.S. Supreme Court was held in New York City’s Royal Exchange Building.

I hope that this FINALLY settles the issue.  Where your parents were born and if they were citizens at the time of your birth makes no difference EXCEPT if you WERE BORN OVERSEAS.  If you were  born in the country you are a NATURAL BORN CITIZEN and eligible for the Presidency and Vice Presidency.

  • Well, I’m not convinced findalis. Article II of the Constitution clearly says there are two classes of citizenship: natural born and citizen and citizen. And there is clear guidance that after the first generation, all those born of that first generation, who became citizens of the United States at it’s founding, would be natural born.

    From all evidence, Chester Arthur lied about his father’s naturalization. Dad became a citizen in 1843. Chester born in 1829 – but there was not internet in those days, and no one knew until much later.

    There is some work on this saying that SCOTUS Judge Waite did not make his decisions based upon English Common law when defining natural born citizenship, and that English Common Law did not require natural born citizenship.

    “Chief Justice Waite, in Minor v. Happersett, in 1875, stated: “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 parents. As to this class there have been doubts, but never as to the first.”

    The conclusion by the writer lined above is that English common law was not used, but rather the Law of Nations – because the Constitution defined two classes of citizenship, not merely citizenship.

    “George Mason, the “Father of the Bill of Rights” and one of the “Founding Fathers” of the United States, proclaimed: “The common law of England is not the common law of these states.” ( Debate in Virginia Ratifying Convention, 19 June 1788).”

    “But the Founders did not rely upon the English common law to define the new national United States citizenship that they created for the new Constitutional Republic. Rather, the Founders replaced the English common law with the law of nations which became the new U.S. federal common law and the law of the federal government.

    “Upon independence from Great Britain, the United States “were bound to receive the law of nations, in its modern state of purity and refinement. Ware v. Hylton, 3 Dall. 199. 199, 281 (1796). In The Nereide, Justice Marshall stated that the “Court is bound by the law of nations, which is part of the law of the land.” 13 U.S. 388, 423 (1815). “The courts have always considered the law of nations to be part of the law of the United States.” M. J. Glennon, Constitutional Diplomacy (Princeton, NJ: Princeton University Press 1990), at 245. There are numerous other authorities that state that the law of nations became the national law of the United States. Even William Blackstone recognized the importance of the law of nations which he considered “universal law” and the life blood of a nation wanting to be part of the “civilized world.”

    What seems of importance to the founders was Emmerich de Vattel’s Law of Nations or Principles of the Law of Nature (1758). Abiding by the Law of Nations seems to be a fixture of the Constitution, or at least to some extent.

    “The Founders knew that Vattel defined a “citizen” simply as any member of society. They also knew from reading Vattel that a “natural born Citizen” had a different standard from just “citizen,” for he or she was a child born in the country to two citizen parents. That is the definition of a “natural born Citizen,” as recognized by numerous U.S. Supreme Court and lower court decisions.”

    “It should be noted that during the Founding and throughout American history, there has always been a distinction between a general “citizen” on the one hand and a “natural born citizen” on the other. The law of nations did not make any specific requirements for one to be a “citizen” of a nation, for such a person was basically just a member of the civil society. Before and after the revolution, the Founders considered anyone who resided in the colonies or States and who adhered to the revolutionary cause to be a “citizen,” regardless of place of birth or condition of the parents. But the law of nations did provide for a strict definition of a “natural born citizen,” i.e., a child born in the country of citizen parents. And the Founders also adopted that stricter definition for an Article II “natural born Citizen” which applied only to one wanting to be President and Commander in Chief of the Military.”

    I have read so much about this, and don’t know the truth of it. I wish I had gone to law school. The thing I do believe is that we must know what natural born citizen means: the child of only 1 citizen or only of 2 U.S. citizens, whether naturalized or natural born, at time of birth.

    Good work findalis. Thanks for sharing it here. Maybe one day we’ll know the truth of the Founder’s intent, but I doubt it. I believe SCOTUS has not already looked into this because they don’t want to stir the pot, so they will let us founder.