Amending the U.S. Constitution by Fiat – Part II
A great many Americans, including a substantial number of my own readers, remain confused about the question of who is and who is not a “natural born” citizen, eligible to serve as president or vice president of the United States. They remain doggedly convinced that Barack Obama, Ted Cruz, Bobby Jindal, and Marco Rubio are all eligible to serve merely because they were born on American soil. That simply is not the case. From the comments I have received in response to a recent column titled, “Amending the U.S. Constitution by Fiat,” it appears as if some either read much too quickly, or are a bit lacking in reading comprehension skills.
Article II, Section 1, Clause 5 of the U.S. Constitution tells us, “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.” It’s pretty straightforward. Nevertheless, it appears that when many read those words they are immediately struck by a strange form of dyslexia. What their brains register is a clause beginning, “No Person except a Citizen of the United States shall be eligible to the Office of President…”
The qualifications related to the age of the president and the number of years of U.S. residency are not at issue… they are quite straightforward and leave no room for misinterpretation. It is the status of the candidates’ citizenship that causes problems for many people… many of whom read the clause as if the legislatures of thirty-eight states had just approved an amendment dropping fourteen words from the middle of the presidential eligibility clause.
Clearly, the use of the word “or” early in the clause tells us that a natural born citizen is someone entirely different from a mere citizen. That was true on June 21, 1788, the day the Constitution was ratified, and it is still true today; the provision has not been amended. The term “citizen” encompasses a broad range of citizenship categories, including “native born,” “natural born,” and “naturalized.” The term “natural born” refers to a specific sub-set of citizens.
When the Founders met in Philadelphia in September 1787 to approve the final draft of the U.S. Constitution, a deep-seated animosity toward all things British colored every aspect of their daily lives. So is it even remotely conceivable that, just five years and eleven months after Cornwallis surrendered at Yorktown, the Founders would have produced a Constitution that would allow an individual holding dual US-British citizenship to serve as commander-in-chief of the Army and the Navy? It is a preposterous notion on its face. To believe that they would have done so requires a willing suspension of reason. Yet, that is precisely what those who use the terms “citizen” and “natural born citizen” interchangeably would have us believe.
To illustrate, let’s pretend that we are present at Independence Hall in Philadelphia on a cold winter’s day in January 1789. It is just seven months after the people of New Hampshire voted to ratify the U.S. Constitution, making it the official law of the land. The third session of the Continental Congress has just been called to decide who should be selected to lead our new nation as president of the United States. The Constitution required that the man they selected had to be either a natural born U.S. citizen… or… a citizen of the United States on the day that the Constitution was ratified, at least thirty-five years of age, and a resident of the U.S. for at least fourteen years.
If those who drafted Article II of the Constitution had insisted upon the same qualifications for president and vice president as they had for members of Congress and members of the federal judiciary, including members of the United States Supreme Court, Article II, Section 1, Clause 5 of the Constitution would have begun, “No Person except a Citizen of the United States shall be eligible to the Office of President…” In a nation of 4 million people, nearly every male citizen over age thirty-five would have qualified.
But if the Framers had produced a document that began, “No Person except a natural born Citizen shall be eligible to the Office of President…” they would have been presented with an insoluble problem because, in 1789, when the first president of the United States was elected, the only natural born citizens in the entire country… those born after the signing of the Declaration of Independence to U.S. citizen parents… were less than thirteen years old.
Fortunately, the authors of Article II, Section 1 of the Constitution had foreseen the problem and, realizing that there could be no thirty-five-year-old natural born citizens during the earliest years of the republic, provided language making it possible for those born prior to the signing of the Declaration of Independence, to parents who were not U.S. citizens, to serve as president or vice president.
It is not as if the country did not enjoy an excess of strong and capable leaders, men of major accomplishments. General George Washington, who led the continental Army during the Revolutionary War, was available. He was born in Wakefield, Virginia on February 22, 1732, forty-four years before the Declaration of Independence. Eighty-four-year-old Benjamin Franklin, a Pennsylvania delegate to the Constitutional Convention and one of the most prominent men of the time was available. Franklin was born in Massachusetts in January 1705, and lived most of his life in the U.S. George Mason, a Virginia delegate to the Constitutional Convention who came to be known as the “Father of the Bill of Rights,” was available. Mason was born in Virginia on December 11, 1725, and lived his entire life in the U.S.
However, none of the three were “natural born” citizens because they were born to parents who were subjects of King George III, but who became U.S. citizens on July 4, 1776 when the Declaration of Independence was signed. And since the Framers had foreseen the problem and had provided a “grandfather” clause to cover the situation, all three were made eligible under the Article II, Section 1 language reading, “or a citizen of the United States at the time of the Adoption of this Constitution…”
In fact, none of our first seven presidents… Washington, J. Adams, Jefferson, Madison, Monroe, J.Q. Adams, or Jackson… were natural born citizens. Martin Van Buren, our eighth president, born to U.S. citizen parent at Kinderhook, New York, on December 5, 1782, six years after the Declaration of Independence, was our first “natural born” president. Every president since Van Buren, with the exception of Republican Chester A. Arthur, whose Irish father was a British
subject at the time of his birth, and Democrat Barack Obama, whose Kenyan father was also a British subject at the time of his birth, has been a “natural born” U.S. citizen, as required by Article II, Section 1 of the Constitution.
Those who doggedly insist that all that is necessary to be a “natural born” citizen is to be born on American soil, regardless of their parents’ citizenship status, have an obligation to explain why the Framers were so careful to distinguish between the terms “citizen” and “natural born citizen” while setting out the qualifications to serve as president of the United States.
Why did the Framers make that distinction? Although it is impossible for parents to know beforehand how their children will ultimately develop, we can all agree that the most influential factor in a child’s upbringing is the parenting he/she receives as a child, and that the cultural, philosophical, political, and religious influence of a child’s parents fundamentally establishes the direction of his/her future conduct and intellectual development. It was that hope of parental and environmental influence on which the Framers pinned their hopes for a Christian nation comprised of Godly citizens who would be capable of maintaining a constitutional republic.
What the Founders feared most, and what caused them to limit access to the presidency only to the “natural born,” was the fear that a future president… during his formative years and during the years in which he was developing intellectually… would be exposed to an environment or a foreign political ideology that might cause him to reject the values and the principles embodied in the U.S. Constitution.
No president has been more emblematic of the worst fears of the Framers than the current resident of 1600 Pennsylvania, Ave., Barack Hussein Obama. His father was a Muslim and a black African socialist; his mother was a left wing socialist flower-child; his stepfather was an Indonesian Muslim, subject to Sharia Law; his grandparents were dedicated socialists, perhaps communist sympathizers; his father figure during his teen years, Frank Marshall Davis, was a nationally known Communist Party writer and propagandist; the people who were instrumental in launching his political career in Chicago were radical Weather Underground terrorists who had participated in the killing of U.S. law enforcement officers; and his religious mentor during his post-college years in Chicago was the Rev. Jeremiah Wright, an America-hater of the first order. Nothing good can come from a lifetime of exposure to such people, so is it any wonder that he has dedicated himself to “fundamentally transforming” the government and the culture of the greatest nation on Earth?
Anyone wishing to take up the challenge outlined above might also wish to enlighten us by preparing a comprehensive list showing how Barack Obama’s governing principles mesh with governing principles contained in the U.S. Constitution. After eight years of Obama rule in the White House, it may help us to decide which poses the greater danger: a) a competent socialist who knows exactly what he’s doing and why he’s doing it, or b) an incompetent socialist who hasn’t the foggiest notion of what he’s doing or how it might impact the greatest nation on Earth. Of the many unknowns surrounding Barack Obama, this may be the most profound.
RELATED ARTICLE: Obama May Have Been Elected With Illegal Votes – Judicial Watch
What has Congress said about the term natural born citizen?
During the 2nd Session of the 37th Congress in 1862, Rep. John Bingham of Ohio, the principal author of the first section of the Fourteenth Amendment, defined ‘natural-born citizen’ on the House floor and no one disputed his definition. In fact no one has disputed his definition on the House or Senate floor since. The definition of ‘natural-born citizens’ remains as follows:
“The Constitution leaves no room for doubt upon this subject. The words ‘natural-born citizen of the United States’ occur in it, and the other provision also occurs in it that ‘Congress shall have power to pass a uniform system of naturalization.’ To naturalize a person is to admit him to citizenship. Who are natural-born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth – natural-born citizens. There is no such word as white in your Constitution. Citizenship, therefore, does not depend upon complexion say more than it depends upon the rights of election or of office. All from other lands, who, by the terms of your laws and a compliance with their provisions becomes naturalized, a adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural-born citizens.”
On March 9, 1866, during debate over the Fourteenth Amendment, Rep. Bingham stated:
“I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen; but, sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or color of power to say that any man born within the jurisdiction of the United States, and not owing a foreign allegiance, is not and shall not be a citizen of the United States.”
In the 2008 presidential campaign, an eligibility challenge was made against Senator John McCain because in 1936, he was born in the Panama Canal Zone, a U.S. territory at the time. Senator McCain submitted his eligibility status to the U. S. Senate for examination. Legal scalars Laurence H. Tribe and Theodore B. Olson were commissioned to write a memo on the matter and determined McCain was eligible. The Senate approved a non-biding resolution (511) stating McCain was eligible to be President though the resolution. It stated, “Whereas John Sidney McCain, III was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now therefore it be resolved that John Sidney McCain, III, is a natural born Citizen under Article II, Section 1, of the Constitution of the United States.“ Interestingly, then Senator Obama, supported the resolution in favor of McCain. However, Senator Obama did not suggest or request his eligibility status be examined.
What has the Supreme Court said about the term natural-born citizen?
In the Supreme Court decision, The Venus, 1814, Justice John Marshall defined “natural-born citizen” citing Vattel, but using his own words stated “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says, ‘the citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country, of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’
In U.S. v. Wong Kim Ark (1898), the Supreme Court held children born in the United States, of permanently-domiciled alien (permanent legal resident) parents, are native-born citizens. But the Court did not hold these children to be natural-born citizens. To the contrary, the Court has consistently used the term “natural born citizen’ to apply only to persons born on U.S. soil, to citizen parents (plural).
The decision was based on the 14th Amendment. This case is often used by some as evidence that any citizen born in the U.S. can be President. However, the 14th Amendment only stated, “all persons born in the United States…excluding Indians not taxed….” were citizens and were to be given “full and equal benefit of all laws.” The Ark decision did not assert or imply the definition of natural-born citizen in the Constitution had changed.
In Inglis v. Trustees (1830) and Elk v. Wilkins (1884), the plaintiff was born in the United States, of a father owing allegiance to sovereignty other than the United States. In each case, the Court determined that the plaintiff did not acquire U.S. citizenship at birth: his nationality at the time of birth was that of his father, not his birthplace.
In Dred Scott v. Sandford (1856), Justice Daniels’s concurring opinion characterized the view that:” natural -born citizens are those born in the country to parents who are citizens”.
In Minor v. Happerset (1874), the decision most on-point, the Court defined two classes of citizens. The first consisted of citizen children born in the United States to U.S.-citizen parents (plural). The second consisted of U.S. born children of non-U.S.-citizen parents. The Court used the term “natural-born citizen’ to apply to members of the first class. While both classes are citizens, only persons in the first class are natural-born.
In Kwock Jan Fat v. White (1920), the Supreme Court referred to Mr. Kwock as a natural-born citizen. He was born in the United States to a father who was a native-born citizen and a mother who was a U.S. citizen by marriage.
In Perkins v. Elg (1939), the Supreme Court referred to Marie Elizabeth Elg as a natural-born citizen. She was born in the U.S. to a father who was a naturalized citizen and a mother who was a U.S. citizen by marriage.
Rogers v. Bellei, 401 U.S. 815 (1971) stated children born outside the United States to U.S. citizen parent(s) are citizens through a naturalization Act of Congress and these children would be aliens without such an Act.
Whenever the Supreme Court has referred to a person as a natural-born citizen, that person was
always born in the United States to U.S. citizen parents.
What the 14th Amendment say about citizenship
The 14th Amendment produced a division among native-born citizens and
statutory native-born citizens. A 14th Amendment native-born citizen is one who was born in the
United States and subject to U.S. authority at birth. In contrast, a statutory native-born citizen does not qualify for birthright citizenship under the 14th Amendment, but obtains U.S. citizenship by laws
enacted by Congress. For example, foreign-born children of U.S. citizen parents don’t obtain citizenship from the 14th Amendment; these children gain citizenship, at birth, by statute.
The 14th Amendment was calculated to achieve the following purposes:
To retroactively define as U.S. citizens former slaves whose citizenship was not acknowledged by the States in which they lived;
To stop States from claiming former slaves were not citizens of States in which they lived, even if they were US citizens.
There is no evidence the 14th Amendment was intended to change the requirements for President.
EVERYONE born on US soil except for the children of foreign diplomats and of members of an invading enemy army is a Natural Born US Citizen.
“Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad.” — Black’s Law Dictionary, Sixth Edition
“What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen.” (Senate Judiciary Committee hearing on OCTOBER 5, 2004)–Senator Orrin G. Hatch (R-UT).
“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are “natural born citizens” eligible to serve as President …”—- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]
“Some birthers imagine that there is a difference between being a “citizen by birth” or a “native citizen” on the one hand and a “natural born” citizen on the other. “Eccentric” is too kind a word for this notion, which is either daft or dishonest. All three terms are identical in meaning.”—The Wall Street Journal (http://online.wsj.com/article/SB10001424052970204619004574322281597739634.html?KEYWORDS=obama+%22natural+born+citizen%22+minor+happersett)
“Every child born in the United States is a natural-born United States citizen except for the children of diplomats.”—Senator Lindsay Graham (December 11, 2008 letter to constituents)