If an officer of the general government of the United States
were inclined to comport her conduct with the requirements of the Constitution,
how could she do so? Among possibilities, reliance on instinct about what the
Constitution forbids and allows is an option; another would be a bit more
arduous, tasking the would-be upright constitutional officer more than instinct.
She could study the Constitution. She could contemplate the Constitution. She
could discuss the Constitution with others, including those who shared her
views and those who were amused by her views. She could hide the Constitution
in her heart, so that she might not sin against it.
That approach might now guarantee success in her venture. It
seems, however, better suited to an honest intention to comport with the metes
and bounds of the Constitution. Our Nation’s Founders understood a mindset like
that. They saw it in the Psalmist.
The Psalmist wrote, “Your words I have hid in my heart, so I might not sin against you.” This is more than placing a verse of God’s Word on the doorpost of the home, more than tucking a copy of it in the folds of his garment. Instead, he has learned God’s Word. He has read and studied it, meditated on it, considered it, incorporated it into his way of thinking. The approach he took suggests that he viewed God’s word much the same way that Jesus’ disciples would later view it. Many that came out to see Jesus, listened to His teaching, and marveled at the wonders that came to pass at His hand, departed from Him because of His saying that unless they ate of his flesh and drank of his blood they would not have life in them. Jesus, when they departed, turned to his closest followers, the disciples, and asked if they too would depart, and they responded: “Where would we go, Master, only you have the words of life.”
The Psalmist wrote, “Your words I have hid in my heart, so I might not sin against you.” This is more than placing a verse of God’s Word on the doorpost of the home, more than tucking a copy of it in the folds of his garment. Instead, he has learned God’s Word. He has read and studied it, meditated on it, considered it, incorporated it into his way of thinking. The approach he took suggests that he viewed God’s word much the same way that Jesus’ disciples would later view it. Many that came out to see Jesus, listened to His teaching, and marveled at the wonders that came to pass at His hand, departed from Him because of His saying that unless they ate of his flesh and drank of his blood they would not have life in them. Jesus, when they departed, turned to his closest followers, the disciples, and asked if they too would depart, and they responded: “Where would we go, Master, only you have the words of life.”
With his understanding enlivened by his study and
incorporation of God’s Word, David sought to live a life in accord with God’s
design. Such a life, truly lived, would be one free from sin. David imperfectly
approached that true living of God’s Word. His affair with Bathsheba, his
murder of Bathsheba’s husband, proved that he approached perfection of life
asymptotically at best.
Now, our American government officer, and we Americans alike, can and should study, understand, and enliven the Constitution. For the functionary, she must do so to comport with its requirements and limitations. For the citizen, we should do so to hold the general government accountable to the Constitution.
Now, our American government officer, and we Americans alike, can and should study, understand, and enliven the Constitution. For the functionary, she must do so to comport with its requirements and limitations. For the citizen, we should do so to hold the general government accountable to the Constitution.
Picking up the Constitution and reading it through is less
work than reading Psalm 119. Understanding the Constitution is less work than
untangling the “begets” of the Old Testament, or the mysteries of the Book of
Revelations. One good technique for acquiring a facility with the Constitution
is contextual understanding. Drilling down into constitutional text, meaning
and application as the needs of particular moments arise, when addressing
either a constitutional crisis or a mere kerfluffle.
Mocked by many, a stalwart ragtag band of activists have
pressed their contention that Barack Obama was not constitutionally eligible to
be elected President. Beginning in advance of the 2008 general election, and
continuing virtually to today, so called “birthers” have challenged Obama’s eligibility
to be President. Their arguments are premised on either of two theories that
suggest he could not meet the requirement that the President be a “natural born
citizen.”
One line of attack against his eligibility, the one most
often played in the media, alleges that Obama was not born in the United States .
Being born in another country might, in the right circumstances, prevent the
child of an American citizen from claiming US citizenship. These “foreign born
birthers” are the ones who have fought for the release of the long form birth
certificate that Hawaii ’s
Secretary of State says is located in their documentary vaults.
The other line of attack is more sophisticated. The “foreign
father birthers” do not contend that Obama was born in Kenya or anywhere else other than Hawaii . For these
“birthers,” including Clinton
supporter Phil Berg, Obama cannot be a natural born citizen because his father
was a British subject at the time of Obama’s birth, and owed allegiance to a
foreign sovereign.
The questions raised by these two groups of birthers, the constitutional contentions upon which their arguments depend – coupled with the high likelihood that questions about constitutional qualifications will continue into the 2016 Presidential season – makes an evaluation of the Qualifications Clause and the Natural Born Citizen provision of it a worthwhile subject of study.
The questions raised by these two groups of birthers, the constitutional contentions upon which their arguments depend – coupled with the high likelihood that questions about constitutional qualifications will continue into the 2016 Presidential season – makes an evaluation of the Qualifications Clause and the Natural Born Citizen provision of it a worthwhile subject of study.
When they ratified the Constitution, the States established
a tripartite general government, consisting of a Legislative Branch, an
Executive Branch, and a Judicial Branch. These branches the Framers devised in
Articles I, II, and III, respectively, of the Constitution. The Executive
Branch, the Presidency, is set up in Article II of the Constitution. Included
in that Article are a short, frankly disturbingly short, set of constitutional
qualifications for election to the Presidency:
"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."
"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."
As you see, only Natural Born Citizens are eligible to be
elected President. Love for this land, sacrifice in its service, lifetime
devotion to its preservation, none of these highly significant characteristics
suffices, in the absence of one being a “Natural Born Citizen.” Uncertainties
on the question of what is a “Natural Born Citizen” have previously moved the
United States Senate to action (more on that in a bit) and launched the cottage
industry of challenges to Barack Obama’s qualification to be President.
While the waning days of the Obama presidency might mark the
end of an era of pressing consideration of eligibility challenges, quite the
opposite is true. First, at least two potential contenders for the 2016
Republican nomination for President face the contention of ineligibility based
on questions about their status as “Natural Born Citizens:” Ted Cruz and Marco Rubio. Second, the
disputes over Obama’s eligibility reveals continuing uncertainty about the term
“natural born citizen,” its meaning within the Constitution, and the power of
the federal government to define – or redefine – that term.
With the 2008 presidential candidacy of John McCain, the
United States Senate quietly addressed the question whether McCain was eligible,
under the Constitution, to be elected president. Eligibility questions have
arisen previously. For example, in 2000, some contended that the Bush-Cheney
ticket was ineligible based the fact that Both Bush and Cheney resided in Texas . Contentions about
McCain’s eligibility rested on other grounds. McCain was born to an American
mother in the Panama Canal Zone during his
American father’s naval tour of duty there. The Senate expressed its sense on
the question, adopting a nonbinding resolution concluding that McCain was, in
fact, a natural born citizen.
Was the Senate, correct? Was John McCain a "natural
born citizen” of the United
States at the time of his birth? The Senate
concluded that he was. As it turns out, the question, although simply stated,
does not seem to have an easily identifiable analysis and answer.
We seem to presume that questioned American citizenship is
resolved simply by asking whether a person was born in America or
became an American through the legal process of naturalization. At a high level
of generality, that assumption holds true. Closer inspection of particular
cases, however, proves that the presumption does not arise from an always
binding principle.
For example, suppose a woman serves as an ambassador to the United States
from another nation. During her service, and while present in the United
States, suppose she gives birth to a daughter. Customarily, although she is “present”
in the United States, that is, physically she is within the territory of the
United States, she is not “subject to the jurisdiction” of the United States.
This conclusion reflects the Law of Nations by which the exchange of emissaries
– ambassadors, consuls, and special representatives – is possible. That
customary rule clothes such individuals with immunity to the law of the nation
to which they have been dispatched.
So, then, what is the citizenship of a child born to a
foreign ambassador present in a foreign land? Again, while state simply, the
question is not necessarily answered simply. As it turns out, the answer
depends on which of two approaches to citizenship the ambassador’s home country
has adopted. Some nations follow a legal principle called jus sanguinus; others
follow a contrary principle called jus soli.
Nations that follow the jus sanguinus rule tie citizenship
to blood relationships. Nations that follow the jus soli rule tie citizenship
to the soil on which one is born. Essentially, the rule of jus sanguinus states
that what is important is not where one is born, but who one’s father is. To
the contrary, the rule of jus soli states that what is important is not who
one’s father is, but, instead, where one is born.
Putting aside the special circumstances of the ambassador’s
baby, determining citizenship by birth, has long required clarifying the choice
of law in the relevant country. To answer this question for persons claiming
status as natural born citizens of the United States , we must discover the
rule followed an American law, as well as address any subtleties or variations
thereof.
To answer the question, we should consider what rule applied
in colonial America to
resolve citizenship questions and then discover whether that rule changed with America ’s independence from England . We
should also consider the adoption of State Constitutions and the United States
Constitution: did the Constitution itself, change the governing rules for
citizenship? Did the Constitution adopt a definition for “natural born citizen?”
Of course, we should also consider subsequent
changes in the law – including, for example, amendments to the Constitution and
judicial decisions.
The original thirteen States arose when those thirteen
colonies severed their ties to the British Crown. Prior to independence, the
colonies lived under the laws of England . In turn, English law
derived from two sources: the long accumulation of judicial decisions extending
back nearly a millennium, a body of law identified as English Common Law; and
statute law, imposed by the Crown or enacted by Parliament, which we can call English
Statute Law.
At independence, the Founders in every one of the thirteen newly independent States adopted English Common Law as the law for the determination of legal questions until altered or amended by State Legislatures. So, although the tyranny of England’s Crown so burdened the Founding Generation that they engaged in open rebellion and warfare, their essential identity at the time, as Englishmen, was reflected in their decision to retain the familiar body of decisional law called the English Common Law in their new, independent States. (In fact, as additional States joined the Union, virtually every State, exceptLouisiana , also adopted
English Common Law as the body of decisional law for the determination of legal
questions.)
As a historical oddity, some elements in the “foreign father birther” crowd will cite a remark by George Mason, made by him during the Virginia Ratification Convention, to the effect that we are not a common law nation. Mason helped to frame the Constitution. He shepherded theVirginia
plan through the 1787 Constitutional Convention in Philadelphia . True, he did say, in a moment
of rhetorical flourish, that we were not a common law country.
At independence, the Founders in every one of the thirteen newly independent States adopted English Common Law as the law for the determination of legal questions until altered or amended by State Legislatures. So, although the tyranny of England’s Crown so burdened the Founding Generation that they engaged in open rebellion and warfare, their essential identity at the time, as Englishmen, was reflected in their decision to retain the familiar body of decisional law called the English Common Law in their new, independent States. (In fact, as additional States joined the Union, virtually every State, except
As a historical oddity, some elements in the “foreign father birther” crowd will cite a remark by George Mason, made by him during the Virginia Ratification Convention, to the effect that we are not a common law nation. Mason helped to frame the Constitution. He shepherded the
Mason’s flight of rhetorical flourish has to be taken in its
context. When he said this, the thirteen independent States had already existed
for 11 years under adopted English Common Law. His flourish cannot undo
historical fact, and the Reception of English Common Law was just that,
historical fact.
Under English Common Law, there was not a status of “natural
born citizen.” Civil roles were defined in relation to the Crown. So English
Common Law employed a different, but related, concept: “Natural Born Subject”
of the Crown. Under English Common Law, every person born within the British
realm had status as “Natural Born Subject,” excepting only the offspring born
in the realm of foreign emissaries engaged in diplomatic service in England . This
fact of English Common Law is confirmed by reference to Blackstone’s
Commentaries on the Law of England. It is also confirmed by parliamentary
actions. Parliament, by statute, expanded the status of “natural born subject”
to certain persons born abroad, whose foreign birth, by English Common Law,
would have deprived them of Natural Born Subject status. (Conferring such
status served important purposes. For example, the ability to inherit
hereditary lands and titles depended on one’s status as a Natural Born
Subject.)
So, when the newly independent States adopted English Common
Law (but not English Statute Law), they adopted the relevant legal concept,
“natural born subject,” modified to suit their status as independent republics.
From the foregoing, you see that England followed the rule of jus soli under English Common Law, and
to the extent required by English Statute Law, it followed jus sanguinus. Thus, here in the newly independent States, the
governing principle, the English Common Law principle, was jus soli.
Following independence and until the ratification by the
States of the Constitution in 1790, citizenship was strictly a matter of state
law considerations. Being native born, being naturalized as a citizen, each
devolved entirely either on the English Common Law adopted by each State at
independence (along with its principle of jus
soli), or on subsequent enactments of State legislative bodies.
The States ratified the Constitution with its requirement
that one must be a “natural born citizen” to be eligible to serve as President.
The States omitted from the Constitution any definition of “citizen” and of
“natural born citizen.”
The States did endow on Congress the power to “provide a
uniform rule of naturalization.” Congress immediately put that power to work,
enacting the Naturalization Act of 1790. That Act allowed free white persons
age 21 and older that had resided in the United States for at least two
years to apply for naturalization. Such applications could be made to state
courts and would be granted on a court’s satisfaction that the applicant was of
good character. In the 1790 Act, Congress also declared that certain offspring
born abroad to American citizens were “natural born citizens.”
Subsequent to the ratification of the Constitution, only one change to it touched on any question of citizenship. The Fourteenth Amendment declared that all persons born or naturalized in the United States and subject to its jurisdiction were citizens of the United States and of the State in which they resided.:
Subsequent to the ratification of the Constitution, only one change to it touched on any question of citizenship. The Fourteenth Amendment declared that all persons born or naturalized in the United States and subject to its jurisdiction were citizens of the United States and of the State in which they resided.:
That amendment, on the heels of the War Between the States, redressed an error of monumental dimensions committed by the Supreme Court of the United States. In the case Dred Scott v. Sandford, the antebellum Court struck at the compromise by which the uneasy peace of the
Still, questions remain.
One question would be how many categories of citizenship do we have in the
We have not yet resolved how to move that additional step, the one from citizen to natural born citizen. If we follow the English Common Law, the answer would seem to be persons born in the United States and subject to its jurisdiction are not only Fourteenth Amendment citizens, but they are natural born citizens by operation of the common law. If, on the other hand, we follow appeals made by the “foreign fathers birthers,” then there would be one additional step in determining whether a person that is a Fourteenth Amendment citizen by birth is also a natural born citizen. That additional step would be an inquiry into the person’s parentage, particularly the citizenship of the father of the person. Such an appeal to parentage is commanded by the jus sanguinus principle discussed earlier.
With Canadian-born Ted Cruz, the son of an natural born American citizen mother and a Cuban exile father, announcing his candidacy for the Republican nomination for president in 2016, the questions are worth evaluation and resolution.
