“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.”
Two aspects of this “natural born” debate surrounding the President-elect bother me.
The lack of assurances from Federal and State government election officials that they have done their due diligence on the subject, and the President-elect’s continued refusal to release any and all documentation needed to establish his eligibility.
Shouldn’t someone from the Federal Government confirm that all candidates running for office were fully vetted, and met all Constitutional requirements to hold that office?
Isn’t there ANYONE in charge of making sure that candidates for the highest office in the land meet the heightened standards set by the Constitution?
And what of those “Constitutional requirements”?
Is it really the case that in the 220 year history of this Republic, we haven’t figured out what the authors of the Constitution meant by “natural born citizen”, or why they drew a distinction between “citizen”, and “natural born citizen” in the span of one thirty-one word sentence?
Or is the likely explanation that, in those 220 years, we have forgotten why the distinction was made, and what the Framers had in mind?
My money is on the latter.
In writing the Constitution, the Framers did not provide us with a detailed definition of every term used in the document. This does not mean that we were left to fend for ourselves when establishing what constitute “unreasonable” searches and seizures, or what additional criteria make a punishment “cruel and unusual”. The definition of “due process of law” began to expand before the Constitution’s ink had dried on the parchment.
But what is the right question to ask when deciphering the meaning of these phrases, and where do the correct answers lie?
Instead of trying to decide on our own “what does ‘natural born citizen’ mean?”, one who believes that the Constitution has a “fixed and knowable meaning” established at the time of its drafting” (see “originalism”), should ask instead “what did the Framers mean by ‘natural born citizen’”?
Clues to what the Framers meant are sparse and buried under years of assumptions and erroneous interpretations, but they exist nevertheless.
Where to begin?
Where do we locate the origins of the notion of “natural born” citizenship?
One can start the search by examining what is already known about Constitutional Clauses.
We know, for example, that Constitutional clauses and concepts, such as the “Search and Seizure Clause”, the “Cruel and Unusual Punishment Clause”, and even the concept of a “Grand Jury”, are all rooted in the British Common Law. In fact, British Common Law is acknowledged as the basis for U.S. Federal Law, as well as the laws of the individual States (except Louisiana). So it stands to reason that the search for the meaning of the “Natural Born Citizen” clause should begin there, and there is no greater authoritative work on the subject than Blackstone’s “Commentaries on the Laws of England”, which James Madison described as “a book which is in every man’s hand” during the Constitutional ratification debates in Virginia.
So then, what does Blackstone say about “natural born citizens”?
Absolutely nothing…he does however go into a great deal of detail as to what constitutes a “natural born subject”:
“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.”
“Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth.”
Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now.”
“…every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once.”
As we see, Blackstone defines “natural born subject” as an undivided allegiance between a subject and his prince. He goes on to describe the allegiance as compulsory and unchangeable by anything other than legislative action. Most importantly, Blackstone clearly states that a natural born subject cannot owe his allegiance to two places.
This Common Law notion that birth equals allegiance was part of American Law well past the ratification of the Constitution:
“All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.” — UNITED STATES v. RHODES Case No. 16,151 Circuit Court, D. Kentucky 27 F. Cas. 785; 1866 U.S. App. LEXIS 330; 1 Abb. 28; 1 Am. Law T. Rep. U.S. Cts. 22 Year: 1866
Also in 1866, during the debate surrounding the ratification of the Fourteenth Amendment, the bill’s primary author, Sen. John Bingham of Ohio, offers proof that nearly one hundred years after the ratification of the Constitution, the term “natural born citizen” still meant exactly what it meant at the time of the document’s composition, and most importantly, that the Fourteenth Amendment was not intended to alter its meaning:
“…find no fault with the introductory clause [S 61 Bill], 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…” (Congressional Globe, 39th Congress (1866) Id. at 1291)
In 1866, our government still understood what the Framers meant when they established natural born citizenship as a Constitutional requirement for the Presidency. A child of a subject of a foreign nation is NOT a natural born citizen even if the child is born in the United States. In addition, given the Framers’ reliance on British Common Law, any individual born in the United States who owes allegiance to a foreign nation or monarch cannot by virtue of such dual allegiance be a natural born citizen.
President-elect Barack Obama was born a Kenyan citizen, and by extension a British subject, in accordance to The British Nationality Act of 1948 (“…a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of their birth.”) By his own admission, he held Kenyan citizenship until 1982.
The Framers distinguish between three classes of citizenship: citizens, naturalized citizens and natural born citizens. The Framers understood the notion of natural born citizen as one born of parents who were both citizens of the United States, and who owed no allegiances to a foreign nation by virtue of dual citizenship.
As one who believes in originalism — the idea that the Constitution has a fixed and knowable meaning established at the time of its drafting — I believe that the Framers’ understanding of “natural born citizen” remains valid until the Constitution is amended to change that requirement.
The State Department is quite clear on the subject of statutes defining what constitutes a “natural born” citizen:
“The fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.”
The 14th Amendment does not mention “natural born” citizenship, so we are left with the original understanding of the Framers, based on British Common Law. Under that understanding, Barack Obama is NOT a natural born citizen, and as such, lacks the required Constitutional qualifications for the Office of the President.
So, where does this leave those of us who believe that this matter should be settled by our highest Court, and in accordance to the original intent of the Framers?
My friend Ed over at Vox Clamantis In Deserto nails it:
“Taking a page straight from the Clinton playbook, Obama’s media worshippers’ preferred ploy for silencing impudent citizens who dare question The One™’s compliance vel non with trivial things like U.S. Constitutional requirements is to dismiss them as cranks, kooks, and tin-foil conspiracy theorists unworthy of response.”
If demanding that the Constitution be followed makes me a “truther”, so be it.
I’ll take the denigration and wear my tin foil hat with pride.