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.”
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.
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.
"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."
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
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.