Ted Cruz speaking at CPAC 2015.Photo credit: Dave Davidson - Prezography.com
Is Cruz constitutionally eligible to run for President?  Yes.
Photo credit: Dave Davidson – Prezography.com

The last couple of days I’ve seen a flood of posts and comments dealing with the constitutional qualifications for President.  I even had somebody call me to debate the subject.  I hung up when he didn’t even let me complete a sentence or finish a thought.  He didn’t even bother to identify himself, but I digress.

We have seen this debate flare up recently in 2008 with U.S. Senator John McCain (R-AZ). This has been discussed with President Barack Obama in 2008 and 2012.  This cycle the candidates in question are U.S. Senators Ted Cruz (R-TX) and Marco Rubio (R-FL), as well as, Louisiana Governor Bobby Jindal.

The argument states that Cruz is not qualified because he was born in Calgary, AB, Canada. His mother is a U.S. Citizen.  His father at the time of his birth was not.  I’ve seen some contend that his mom pursued Canadian citizenship even though I’ve not seen one scintilla of proof verifying that.  The more common argument states that since he was not born on U.S. soil (and some of these folks would probably be even more specific and one has to be born in the United States not just U.S. soil) Cruz is not a natural born citizen.

For Rubio and Jindal the argument goes that since their parents were not citizens even though both were born in the United States they are not natural born citizens.

For review, constitutionally there are three basic qualifications for those running for President today.  In Article II, Section 1 of the U.S. Constitution we see that a candidate for President must be:

  1. A natural born Citizen
  2. Be at least 35-years-old, and
  3. A resident of within the United States for at least 14 years.

There is no definition in the Constitution or in federal statute for what a “natural born citizen” is.  There is no definition in federal law.  There is no writings by our founders that defines it.  There is not a clear understanding in British law in the British American Colonies.  There is no binding Supreme Court case that settles this.  None, nada, zip.  There are two ways one becomes a citizen – by birth or through the naturalization process. The 14th Amendment states that those born in the United States are citizens by birth.  Those born to a U.S. citizen regardless of where they were born.

The Article II, Section 1 of the U.S. Constitution does not specify a geographical location.  At the time “natural born subjects” under British law were considered such through their father’s lineage.  U.S. law, nor the Constitution, require both parents to be citizens or specifically the father to be a citizen in order to be considered a citizen by birth.

There is no third type of citizenship.  The only two categories mentioned in the Constitution are natural born/citizenship by birth and naturalized citizenship.  Those who are naturalized do not qualify.

So my point is not to settle this debate because I don’t think it ever will be.  That’s the point I want to make with those who believe Cruz, Jindal and Rubio are not eligible to run is that this is not legally settled, and to think you have rock solid evidence to the contrary is nonsense.  This is a political consideration.  If you believe Cruz, Jindal and Rubio are not eligible then you are free to not vote for them for whatever reason you like.

That’s how we need to settle this argument because there no basis constitutionally or legally for keeping them off the ballot based on the text of the Constitution and federal law. Period.

Frankly I think this particular debate is a waste of time and a distraction.  If there was rock solid evidence that shows Jindal and Rubio were not born in the United States or that Cruz’s mom renounced U.S. citizenship while living in Canada then I think that would be a compelling case, but there isn’t.  If you disagree you can use your constitutional right to not vote for the candidates in question.

Additional note: I would encourage you to read William Jacobson’s piece on this from a couple of years ago.  He is a law professor at Cornell Law School and he, unlike me, actually gets into the weeds on this topic.  Here is a shorter piece on the subject from Harvard Law Review.

14 comments
  1. The problem with you argument is that you say that neither the Constitution, nor federal statute, nor some other federal law defines a natural born citizen. On the contrary, the clause is defined by national constitutional law. The definition of the clause was confirmed by the unanimous U.S. Supreme Court in Minor v. Happersett (1875) where the Court held:

    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. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.

    Minor v. Happersett, 88 U.S. 162, 167-68 (1875).

    Wong Kim Ark (1898) is in accord with that definition. It also said:

    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 [p680] 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. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

    Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.

    U.S. v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898).

    So, as we can see, our U.S. Supreme Court has told us that the Framers’ definition of a natural born citizen may be found in the common law the nomenclature with which they were familiar when they drafted and adopted the Constitution. Under that common law, a natural born citizen is a child born in a country to parents who were its citizens at the time of the child’s birth. If one meets these birth circumstances and facts, one is not born subject to any foreign power.

    You second problem is that you want to arrive at a definition of a natural born citizen through bootstrapping. One does not get to be a natural born citizen by providing a limited definition of the term “naturalization,” saying that one is not a naturalized citizen, and then concluding that therefore one is a natural born citizen. Rather, the correct approach is to look to the Constitution and satisfy the definition of a natural born citizen which existed under the common law to which the Framers looked to define the clause. Minor. Under our Constitution, there are only citizens and natural born citizens. Under Article II, Section 1, Clause 5, only a “natural born Citizen,” or a “Citizen of the United States” as of the time of the adoption of the Constitution, is eligible to be President. This means that for those born after its adoption, only natural born citizens are so eligible. This text and structure tell us that there is a critical constitutional distinction between a citizen and a natural born citizen. This text and structure also tell us that a natural born citizen has a more stringent allegiance requirement than does a citizen of the United States. Again, that allegiance requirement is that one is born not subject to any foreign power.

    So, in order to be President today, the first constitutional question is whether the person is a natural born citizen, not whether the person is a citizen of the United States. The natural born citizen status is satisfied by complying with the common law definition of a natural born citizen as confirmed by Minor and Wong Kim Ark. Given this constitutional eligibility requirement, the Framers commanded that future Presidents and Commanders in Chief be born not subject to any foreign power.

    If one is not a natural born citizen, one can still be a citizen. That is done by satisfying any law that applies to give one plain citizenship status. If one is a citizen, but not a natural born citizen, then one is a citizen by some law which means by naturalization, either at birth or after birth. One needs that naturalization because, not being born a natural born citizen, one was born subject to a foreign power. The laws that are available to make one a citizen who is not a natural born citizen are the Fourteenth Amendment, naturalization Acts of Congress, and treaties. Depending on one’s birth circumstances and satisfaction of the requirements in these laws, one can be either a citizen of the United States “at birth,” after birth, or not at all.

    Cruz, Rubio, and Jindal do not satisfy the one and only one definition of the clause that existed at common law. Cruz was born in Canada presumably to a U.S. citizen mother and Cuban father. He was born not only in allegiance to and a citizen of the United States, but also Canada and Cuba. Both Rubio and Jindal were born in the United States, but to non-U.S. citizen fathers and mothers. They were born not only in allegiance to and a citizen of the United States, but also India (at the time of his birth, his parents were Indian citizens). Cruz, Rubio, and Jindal are not and cannot be natural born citizens because they were not born in the United States to U.S. citizen parents. They were all born subject to a foreign power. Cruz, being born out of the United States, is a citizen, but only under a naturalization Act of Congress, assuming he was born to a U.S. citizen mother. Rubio and Jindal are also citizens of the United States “at birth,” but, since they were born in the United States, they do not need, like Cruz does, a naturalization Act of Congress. Rather, they are citizens under the Fourteenth Amendment and a confirming naturalization Act of Congress. But again, because Cruz, Rubio, and Jindal were not born in the country to parents who were its citizens at the time of their children’s birth, they are not also natural born citizens.

    By the way, Barack Obama was presumably born in the United States to a U.S. citizen mother. But he was born to a non-U.S. citizen father. Hence, he, too, was not born in the United States to U.S. citizen parents. He was born not only in allegiance to and a citizen of the United States (assuming he was born in the United States), but also Great Britain and Kenya. Therefore, he is not a natural born citizen.

    As to Rick Santorum, he is a natural born citizen. He was born in the United States to parents who were both U.S. citizens at the time of his birth. For a full explanation of his status, see, Mario Apuzzo, “Rick Santorum Is An Article II Natural Born Citizen and Eligible to Be President ,” accessed at http://puzo1.blogspot.com/2015/01/rick-santorum-is-article-ii-natural.html .

    Mario Apuzzo, Esq.
    http://puzo1.blogspot.com

    1. We could go back and forth… you trying to convince me and me trying to convince you which neither of us will be successful at doing so it’s a waste of time. I am aware of the court cases you cite, and neither of them move the discussion. Here’s why from Legal Insurrection:

      http://legalinsurrection.com/2013/09/natural-born-citizens-marco-rubio-bobby-jindal-ted-cruz/

      The two cases most cited in this area are Minor v. Happersett, 88 U.S. 162 (1874) and United States v. Wong Kim Ark, 169 U.S. 649 (1898). Neither case actually decided what “natural born Citizen” means, but there was some verbiage (what we call “dicta,” meaning expressions not related to the actual ruling) which have created a lot of unsubstantiated claims.

      Minor v. Happersett addressed whether a state law affording only men the right to vote violated the privileges and immunities clause of the 14th Amendment, not whether the woman litigant was a “natural born Citizen.” Is resolving the case to find that there was no violation, the Court made the following statement (emphasis added):

      Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it providesFN6 that ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,’FN7 and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization.

      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. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words ‘all children’ are certainly as comprehensive, when used in this connection, as ‘all persons,’ and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.

      It is crystal clear, from the sentences I have underscored, that the Court in Minor v. Happersett did not even purport to resolve the issue as to whether children born in the United States “without reference to the citizenship of their parents” were “natural born Citizen[s].” The issue of “natural born Citizen[ship]” was not before the court, was not the issue in the case, and expressly was not resolved; yet this wording relating to “natural-born Citizens” often is used improperly to claim that birth in the United States is not enough to be a “natural born Citizen” unless both parents were citizens.

      Not only does that ignore the subsequent sentences, it also over-reads the case. Even if there were a holding that “all children born in a country of parents who were its citizens” were “natural born Citizen[s],” that would not exclude other situations giving rise to being a “natural born Citizen.”

      It’s common to see people refer to Ex Parte Lockwood, 154 U.S. 116 (1894) as supposedly confirming that Minor v. Happersett is binding authority. (There even was a conspiracy theory that Justia and Cornell’s Legal Information Institute conspired to hide Lockwood, which I somehow got dragged into.) Lockwood, however, did not involve the “natural born Citizen” clause, but rather, a claim by an attorney who was refused admission to the Bar and claimed a violation of the 14th Amendment’s privileges and immunity’s clause. The Court in Lockwood quoted Minor v. Happersett but only as to citizenship, not for the purpose of ruling on the “natural born Citizen” clause:

      In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizons of the United States was no violation of the federal constitution.

      In United States v. Wong Kim Ark, the issue was whether a child born in the United States to non-citizen parents from China was a citizen of the United States by virtue of the 14th Amendment. The Court held the child was a citizen, but in reaching that result engaged in some discussion of the history of citizenship and “natural born Citizen[ship]” which has sparked many theories (and a vigorous dissent). There are lengthy discussions of the concept of allegiance under British citizenship law, as well as French and European citizenship concepts. From these discussions, many have drawn all sorts of conclusions in every direction.

      This paragraph, however, has led to claims that persons born abroad cannot be “natural born Citizen[s]” because birth abroad is “naturalization”:

      The fourteenth amendment of the constitution, in the declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,’ contemplates two sources of citizenship, and two only,—birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

      It’s not clear that the Court was considering these topics in the context of the “natural born Citizen” clause, since that was not at issue in the case. Since “natural born Citizen[ship]” was not the issue in the case, and the Court did not even purport to rule on the issue as to whether someone is a “natural born Citizen,” at most there were expressions of opinion (dicta) that would not be legal precedent.

      1. The unanimous U.S. Supreme Court in Minor v. Happersett (1875) held that a natural born citizen is a child born in a country to citizen parents. Since Virginia Minor had those birth circumstances, she was both a natural born citizen and necessarily a citizen. The Court also held that voting was not a privilege and immunity of being a citizen. Therefore, Missouri could deny women the right to vote if it so chose. The Court’s in-depth discussion on citizenship in general and natural born citizen specifically was central to the Court’s ultimate decision on women’s voting rights and is therefore ratio decidendi and binding precedent.

        The Minor Court did not leave open any question of whether children born within the jurisdiction to alien parents were as you say “natural born citizens.” The Court said that “some authorities” maintained that those children were “citizens.” It did not say “natural born citizens.” Also, the Court had already defined the natural born citizens and clearly, under the Court’s common law definition, excluded those children from being natural born citizens. What the Court did do was leave open the question whether those children were citizens of the United States under the new Fourteenth Amendment, a question which The Slaughterhouse Cases (1873) had answered in the negative, but which U.S. v Wong Kim Ark (1898) answered in the affirmative, provided they were born “subject to the jurisdiction” of the United States. Wong held that since Wong was born in the United States to alien parents who were domiciled and permanently residing in the United States and neither foreign diplomats nor military invaders, he was a “citizen of the United States” from the moment of birth by virtue of the Fourteenth Amendment. It did not hold that Wong was a natural born citizen by virtue of the common law which Minor had already confirmed provided the Framers’ definition of the clause.

        So, Minor is the precedent on defining a natural born citizen, which defined on as a child born in a country to parents who were its citizens. Wong Kim Ark is precedent on interpreting the Fourteenth Amendment and deciding who is a citizen of the Untied States from the moment of birth under that Amendment.

        As to children born out of the United States, they do not meet the common law definition of a natural born citizen nor can they be citizens of the United States under the Fourteenth Amendment. Both Wong Kim Ark and Rogers v. Bellei explained that they can be citizens of the United States only through a naturalization Act of Congress and would not be citizens at all without such Act. Hence, if born out of the United States to one or two U.S. citizen parents, they are naturalized citizens at birth. But not meeting the common law definition of a natural born citizen and becoming citizens only through a naturalization Act of Congress, they are not and cannot be natural born citizens. Congress has recognized this fact since 1790 when it said that such children “shall be considered as natural born citizens.” Congress in 1795 then removed that language and made it clear that they “shall be considered as citizens of the United States.” Congress, since 1790, has never again used the “natural born citizen” language when legislating on the subject. Hence, the historical and legal record demonstrates that children born out of the United States to one or two U.S. citizen parents are naturalized citizens of the United States “at birth,” but are not natural born citizens.

      2. Shane Vander Hart,

        You are correct about the quotation from Minor v. Happersett being dicta. The single sentence “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” could be removed from the passage and the decision would not be changed. This is a classic example of dicta.

        Minor v Happersett was never viewed as deciding the meaning of the natural born citizen clause. On the other hand, as early as just several moths after the decision in Wong Kim Ark, it was seen as granting Chinese children born here, eligibility to be President. For example,

        “The common law rule has been finally affirmed by the Supreme Court in the recent case of the United States v Wong Kim Ark. The Supreme Court held that a child born in this country of Chinese parents domiciled here is a citizen of the United States by virtue of the locality of his birth. The whole subject is discussed at length in the opinions of this case. The effect of this decision is to make citizens of the United States by virtue of the Fourteenth Amendment all persons born in United States of alien parents permanently domiciled and residing here, except the children of the diplomatic representatives of foreign powers; and, therefore, a male child born here of alien Chinese subjects is now eligible to the office of President, although his parents could not be naturalized under our laws.” William Dameron Guthrie, 1898 in Lectures on the Fourteenth Article of Amendment to the Constitution of the United States

        And

        “Under decision of the Supreme Court of the United States, a child of domiciled Chinese parents, if born in the United States, would seem to be eligible to the office of President and to all the privileges of the Constitution, while the child of American parents and grandparents, born on shipboard or in foreign territory in travel or transit, might be excluded from similar rights and privileges.”

        “A natural-born citizen has been defined as one whose citizenship is established by the jurisdiction which the United States already has over the parents of the child, not what is thereafter acquired by choice of residence in this country.”

        “The conclusion is, that the child of citizens of the United States, wherever born, is “a natural-born citizen of the United States,” and, as such, if possessed of the other qualifications, would be eligible for the office of President of the United States.” Alexander Porter Morse, 1903, The Washington Law Reporter Volume 31.

      1. Both Minor and Wong Kim Ark said that the Constitution, which then already included the Fourteenth Amendment, did not define a natural born citizen. But they both also said that the common law the nomenclature with which the Framers were familiar when they drafted and adopted the Constitution did. So, if you want to know how the Framers defined a natural born citizen, go to that common law, not to be confounded and confused with the colonial English common law.

  2. “There is no definition…”

    Shane, it is true that there is no definition of “natural born Citizen” that can be adduced from the constitutional convention debates..

    So, since there is no definition of “nbC” on what basis do you base your belief that birth on U.S. soil to one OR zero (Sen. Marco Rubio and Gov. Bobby Jindal) U.S. citizen parents was intended, OR that birth on FOREIGN soil to one (Sen. Ted Cruz) OR two (former Connecticut Senator Lowell Weiker) U.S. citizen parents was the original intent of John Jay when he underlined the word “born” in “natural born Citizen” in his note to his good friend General George Washington?

    What you wrote about Article II section 1 clause 5 is accurate, but not your “no definition” conclusion adduced below ([Neither’ “…require both parents to be citizens or specifically the father to be a citizen….”) for the same reason that Prof. Jacobson is not accurate, not being aware of John Jay’s original genesis original intent for underlining the word “born” in “natural born Citizen”:

    >> “For review, constitutionally there are three basic qualifications for those running for President today. In Article II, Section 1 of the U.S. Constitution we see that a candidate for President must be:

    A natural born Citizen
    Be at least 35-years-old, and
    A resident of within the United States for at least 14 years.

    >> “There is no definition in the Constitution or in federal statute for what a “natural born citizen” is. … None, nada, zip.

    […snip…]

    >> “The Article II, Section 1 of the U.S. Constitution does not specify a geographical location.

    >> “At the time “natural born subjects” under British law were considered such through their father’s lineage.

    >> [Neither] “U.S. law, nor the Constitution, require both parents to be citizens or specifically the father to be a citizen in order to be considered a citizen by birth.”

    ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

    Shane, have you ever adduced John Jay and considered Jay’s 1787 opinion about why he underlined the word “born” and what “natural born Citizen” meant to him in 1787 America?

    Others to whom I have posed this question have never responded with a rebuttal that refutes the commonsense assertion that John Jay’s “original genesis original intent” for underling the word “born” in “natural born Citizen” in his July 25, 1787 note to Washington had ONLY one meaning: ONLY birth to two U.S. citizen parents who were BOTH U.S. citizens BEFORE their child is born and NOT the 2000s theory, aka the 2000s myth, of birth to ONLY one or zero U.S. citizen parents, whether born on U.S. soil or foreign soil.

    Shane, do you agree with the “ONLY” points below as related to the “BEFORE” point?

    It must be repeated incessantly until it sinks into the We the People consciousness: The original genesis original intent meaning of “born” in “natural born Citizen” can ONLY mean

    _ONLY singular U.S. citizenship
    _ONLY by birth on U.S. soil
    _ONLY by birth to two U.S. citizen married parents
    _ONLY married to each other
    _BEFORE the child is born

    for the child to qualify to be “…eligible to the Office of President.”

    So, Shane, do you agree with the “ONLY” points as related to the “BEFORE” point as related to John Jay in 1787 instead of the 2000s theory, the 2000s myth, that birth on U.S. soil OR foreign soil was John Jay’s original intent and the concomitant theory and myth that birth to ONLY one U.S. citizen was also Jay’s original intent in 1787, only four years after the 1783 Treaty of Paris was signed by Ben Franklin, John Adams and John Jay?

    Art
    U.S. Constitution: The Original Birther Document of the Union
    ( OriginalBirtherDocument24.blogspot.com )

    1. I adduced that when the Framers wrote the Constitution they hoped that people would understand the meanings of its terms without much difficulty. In many cases they succeeded. But in others they weren’t as successful (“It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution.” Alexander Hamilton, 1795). This may be the case with the term natural born Citizen.

      A timeline of events during the August to September, 1787 period may be helpful.

      July 25th, 1787 Jay writes letter to Washington. “Permit me to hint…”

      August 6th, 1787, the first draft Constitution is presented to the Convention by Mr. Rutledge for the Committee of Detail.

      “Article X Sect. 1. The Executive Power of the United States shall be vested in a single person. His stile shall be, “The President of the United States of America;” and his title shall be, “His Excellency.” He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time.”

      August 9th, 1787, in a debate over the requirements for Senator, several members of the Convention suggested that Senators be native born. James Wilson argued that this was not fair to him and to others who were not native born. He argued that under such a provision they would be prohibited from holding office even as they were helping to write the new Constitution. The measure failed.

      September 2nd, 1787 Washington writes a letter to John Jay, “I thank you for the hints contained in your letter.”

      September 12th the committee of stile produces a refined version of the August 6th Constitution, it includes the Presidential eligibility and grandfather clause.

      “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.”

      From these facts I adduce that a) the natural born citizen clause was added as a direct result of Jay’s letter and b) the grandfather clause was added to help people like Wilson and Hamilton. Unfortunately this does not help us to determine the meaning of the term in question. But I also adduce that as there was no record of any debate over the term natural born citizen, it’s meaning must have been understood by the delegates and therefore the public at large.

      So if we can adduce the meaning of the natural born citizen term to the general public in 1787 then we should be able to adduce its meaning to Convention delegates.

  3. As Justice Grey pointed out in the Wong Kim Ark decisions, while there are only two types of citizenship, there are more than one source of citizenship at birth.

    There are two sources of citizenship at birth: one is by positive law and the other is by natural law. If you need to quote a naturalization statute to acquire U.S. citizenship at birth; you are not an Art. II §I Cl. 5 natural born Citizen. In short, if you are not born exclusively under U.S. sovereignty, you are not a natural U.S. citizen.

    1. The first Congress that consisted of Founders and Framers had no problem using positive law to create natural born citizens. They did it in the 1790 Naturalization Act

      1. No, they didn’t. But the 3rd Congress did. Mr. James Madison, who had been a member of the Constitutional Convention and had participated in the drafting of the terms of the eligibility clause, was a member of the Committee of the House, together with Samuel Dexter of Massachusetts and Thomas A. Carnes, of Georgia, when the matter of the uniform naturalization act was considered in 1795. Here the false inference which such language might suggest with regard to the President was noted, and the Committee, with the approval of Washington, sponsored a new naturalization bill which deleted the term “natural-born” from the Act of 1795. (1 Stat 414) This error was never repeated in any subsequent naturalization act.

      2. Moreover, Mr. Rawle,

        The issue isn’t over the correct definition of an Art. II §I Cl. 5 natural born Citizen, the issue is where did the founders and framers of the U.S. Constitution want the power to set the qualifications of the president, the highest office in the land, to rest, with Congress or in the hands of We the people?

      3. The 1790 Act incorporated the term “natural born citizen” because they were following the English system.

        “The case of children of American parents born abroad ought to be provided for, as was done in the case of English parents, in the 12th year of William III.“ Congressman Burke, Debates in Congress February 4,1790.

        It was removed for reasons unspecified. You claim it was an error but I claim that based on the debates before the 1795 act, congress was concerned about upheaval in Europe spreading to the US.

        Either way Congress used positive law to create natural born citizens in 1790 and positive law to take away natural born citizenship in 1795.

        We the People did decide the qualifications for president in 2008 and 2012.

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