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We Don’t Know What “Natural Born Citizen” Means and Probably Never Will

If unjustified exclusion of naturalized citizens doesn't move you to support a constitutional amendment to repeal the Natural Born Citizen Clause, maybe legal uncertainty will. Elimination of this uncertainty is the third best reason to support a repeal amendment. First is that repeal will make everyone better off and nobody worse off; second is that a repeal amendment makes for good politics. Even if you reject these first two reasons, though, elimination of legal uncertainty is independently desirable.

Although the Natural Born Citizen Clause unquestionably excludes millions of naturalized citizens, its most visible function in practical politics is to impose uncertainty and resulting costs respecting individuals whose "natural born" status is unclear. Because those who are plainly excluded do not bother to run, those who do run are either plainly not excluded or only arguably and uncertainly so. That means legal proceedings are inevitable.

In my earlier guest posts and most of the comments this week, we've been acting as if we know what "natural born Citizen" means. But we don't, at least not fully. We know that "natural born Citizen" excludes non-citizens and naturalized citizens. But there is genuine and deep legal uncertainty about whether some citizens are naturalized or natural-born.

Factual uncertainty can cause problems too, as birther excitement about Barack Obama illustrated. But factual uncertainty is likely to be less serious a problem than legal uncertainty. Simple matters of fact such as someone's place of birth can usually be ascertained and proven. When the evidence is pretty good, holdouts are likely to be people who would not politically support the person in question, and unreasonable persistence in holding out discredits the holdouts more than the candidate.

In the absence of a definitive judicial determination—-which we haven't yet had and probably never will—-legal uncertainty presents a problem more difficult to dispel. Jurists and scholars dispute whether "natural born" refers to a territorial concept (jus soli), a bloodline concept (jus sanguinis), or some combination, and how the law incorporated into the Constitution—whatever it may be—interacts with legislation enacted by Congress. The most recent comprehensive examination of the original legal meaning of the Natural Born Citizen Clause provided a new formulation of this meaning distinct from what the author described as the conventional wisdom as well as its leading alternative.

Republican Senator Ted Cruz's experiences in the 2016 presidential primary provide a recent illustration of the uncertain legal meaning of "natural born Citizen." By statute, Cruz has been a citizen of the United States from the time of his birth in Canada to a Cuban father and an American mother. But it is legally uncertain whether the federal statute supplying that status is a naturalization statute or one that makes him "a natural born Citizen." (The best formulation of Cruz's position is that "natural born Citizen" means "someone who was a U.S. citizen at birth with no need to through a naturalization proceeding at some later time.")

Despite the benefit to be gained from having a cloud removed from over his candidacy, someone in Cruz's position has good reason to avoid championing a repeal amendment. That would only lend legitimacy to a legal position he has rejected and could potentially undercut his support from people suspicious of foreign-born candidates regardless of citizenship status from one U.S.-citizen parent at birth.

Also, as many commenters have already noted, an amendment tied to any particular person's candidacy is unlikely to garner bipartisan support. Partisan politics must have had some influence on Senator Dianne Feinstein (D-CA), for example, when she said in 2004 in connection with "the Arnold Amendment" that "I don't think it is unfair to say the president of the United States should be a native-born citizen. Your allegiance is driven by your birth." (The political winds have since shifted for Democrats on immigration-related issues, of course. I'm guessing Senator Feinstein's old position on the Natural Born Citizen Clause has by now gone up in smoke.)

The legal uncertainty surrounding Cruz's eligibility imposed significant economic costs and incalculable (because unknown and unknowable) political costs. His participation in the 2016 Republican primary led to state election commission proceedings in five states (Illinois, Indiana, New Hampshire, New Jersey, and New York); lawsuits in six state courts (Florida, Hawaii, Illinois, New York, Pennsylvania, and Vermont); and lawsuits in six federal courts (Northern District of Alabama, Eastern District of Arkansas, District of New Hampshire, Eastern District of New York, Southern District of Texas (with appeal to the Fifth Circuit), and District of Utah (with appeal to the Tenth Circuit and petition for certiorari to the Supreme Court)). (HT: Derek Muller, Excess of Democracy.)

These proceedings all required time and money. But taken collectively, they yielded no definitive going-forward resolution. Some were resolved on non-merits grounds (such as lack of jurisdiction), or ended up moot or in a denial of certiorari at the Supreme Court when Cruz's candidacy was no longer viable. All of these proceedings—for just this one unsuccessful candidacy—were a waste of time and energy that amounted to nothing lasting for the law. And that is how such proceedings have consistently cashed out over time. Nobody who has paid attention to this status quo can defend it.

We're fortunate it has not been worse. Should it ever come to be that someone with an uncertain "natural born Citizen" status becomes President, whether through election or succession, that would be the worst possible time for the Supreme Court finally to render a judicial determination. Regardless of reasoning, the outcome would be understood primarily in partisan political terms. That's no good for the President, the Supreme Court, or the country. And all to what end?

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  • Brett Bellmore||

    Everything important in the Constitution eventually becomes "uncertain", because there will always be somebody who doesn't like what it means, and they will always claim that it means something else, or is at least ambiguous.

    It's tautological: Everything that can be disputed is disputable, and everything, period, is capable of being disputed, the only question is whether anybody wants to dispute it, and whether enough people will humor them instead of declaring them crackpots.

    So, I. Don't. Care. I don't care if we don't "know" what it means. We don't "know" what anything in the Constitution means, if any significant number of people don't like it.

    All Constitutional ambiguity means anymore is that somebody somewhere doesn't like a clause, and they're not honest enough to admit the Constitution really, truly, means something they don't like. I've lost my capacity to care when somebody asserts a clause in the Constitution is ambiguous.

    Because all it really means anymore is that they don't like it.

  • loveconstitution1789||

    I also pay attention to how they are trying to twist the Constitution. It is always clear when people are trying to twist it to limit the limits on government power.

    The 2nd Amendment is famously twisted to somehow limit American's ability to have any time of Arms. The 2nd Amendment limits government on this issue and protects the right of the People to keep and bear arms.

  • MightyMouse||

    Naturalized citizens are heard to say they feel more American than natural born citizens, and rightly so.

    Was Lincoln from Illinois or Kentucky? He was from Illinois. How stupid would it be if the Illinois constitution said you had to be a natural born Illinoisan to be governor of Illinois.

  • loveconstitution1789||

    I am "more American" than many people because I fight for people's rights as well as my own. I also have relatives that actually fought in the Revolutionary War to secure the nation we have now. I also served in the military. All these are subjective indicators of patriotism.

    If Illinois wanted that to be their requirement to be governor, so what? How is trying to make sure people in political positions actually represent the represented a bad thing?

    A Natural Born Citizen is an American and therefore has to ask permission of another country if they fuck up this country and want to leave.

  • Sarcastr0||

    subjective indicators of patriotism.

    Careful - my mom told me that if you self-validate too hard, you can go blind.

  • gormadoc||

    How is trying to make sure people in political positions actually represent the represented a bad thing?

    Bob Kerry tried running for Senate in Nebraska years ago. Even though he owned property here he hadn't lived here for years and was rejected by the voters. It's not required for it to be a law to forbid it; voters are discerning.

    A Natural Born Citizen is an American and therefore has to ask permission of another country if they fuck up this country and want to leave.

    That's not necessarily true. There are numerous countries through whom a natural born citizen can possess dual citizenship along with their American citizenship.

  • loveconstitution1789||

    A natural born citizen should be mandated by congress to be someone born inside US territory to two American citizens. The parents do not necessarily need to be natural born citizens themselves. If one of you parents is not a citizen, then you would not be a natural born citizen. You could have dual citizenship from birth.

    Natural born citizens could apply for dual citizenship and be president because they were born natural born citizens.

    Congress sets the standard and its not that strict.

  • MightyMouse||

    Yes, I don't disagree.

    I'm just saying there is nothing of intrinsic value by simply being born in some physical location.

    If it turned out you were actually adopted from Somalia, would it make you less loyal to this country?

  • Sarcastr0||

    For all your foot stomping and accusations of bad faith across all liberaldom, you can't seem to disprove the OP.

    I do like that your policy is to double down on your own beliefs. Convenient, that.

  • QuantumBoxCat||

    I don't understand what your post means and as such I think it should be deleted.

  • M.L.||

    Agreed, it's for our own good.

  • Joe_JP||

    I'm not sure how uncertain the age requirements are or how many senators each state gets or various other things that are pretty important in various ways. Other things are disputed because there aren't obvious & there were disputes from the very beginning.

    Madison and Hamilton disputed things. They liked the Constitution, including various things they disputed. It isn't all some sort of fraud. It's actual debate with a lot of shades of legitimate gray.

  • prsmith||

    Of course we know what it means. There is only one place where the term is defined and that is in Book 1, Section 212 of Emerich DeVattel's THE LAW OF NATIONS, a resource used as a textbook by and well known to the lawyers of the day. A natural born citizen is a person who was born of citizen parents while they were on US soil.

    "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 natural-born citizens, are those born in the country, of parents who are citizens. "
    http://www.constitution.org/vattel/vattel_01.htm

  • Noscitur a sociis||

    So the current definition comes from some Swiss guy who died thirty years before the constitution was written?

    Sounds like an excellent reason for an amendment.

  • Brett Bellmore||

    The term being a term of art with an established meaning at the time of the Constitution's writing is an excellent reason for an amendment?

  • Bored Lawyer||

    No, it comes from what the common usage of a term was at the time the Constitution was passed. The Swiss guy is just evidence of that.

    Like the term "ex post facto." It literally means retroactive law, but at the time lawyers understood it meant a retroactive criminal law. Which is what the Supreme Court held it meant in Calder v. Bull (1798).

    Same for such phrases as "habeas corpus" or "Bill of Attainder." There was a common meaning among lawyers at the time, and everyone understood what it meant.

  • gormadoc||

    It doesn't seem valid anymore, as it would not cover individuals born within the US who only have one parent as a citizen. It also wouldn't have allowed John McCain to become President as he was born in an unincorporated territory, which means it was under US control but was not part of the US.

  • CE||

    McCain was ineligible when he ran. He was naturalized by a US law when he was 2 years old.
    Bush/Cheney were ineligible too, since they both lived in Texas when elected.

  • Brett Bellmore||

    True. All parts of the ever growing portion of the Constitution which is effectively a dead letter, because the judiciary won't admit anyone has standing to ask the court to enforce them.

  • Alpheus W Drinkwater||

    I was going to ask about that. If in 2020 a naturalized citizen got herself on the presidential ballot in a bunch of states, who would have standing to challenge in federal court?

  • David Nieporent||

    It's not clear whether anyone would, but if anyone would, it would be said candidate's opponent.

  • Alpheus W Drinkwater||

    Is there a fatal flaw in the current jurisprudence of standing, if a blatant and obvious constitutional violation cannot be addressed by the federal judiciary? Or is this perhaps just another abdication of Congressional power?

  • David Nieporent||

    Bush/Cheney were ineligible too, since they both lived in Texas when elected.

    You think there's a provision of the constitution that says that people who live in Texas are ineligible to the presidency? I think lots of liberals would sign on to that at this point in time, but... no. People who live in any state are eligible.

    If what you meant was that two people in live in the same state aren't eligible to be on the same ticket, that is both legally incorrect and factually irrelevant, since Cheney had moved back to Wyoming. (It's legally incorrect because that's not what the constitution says. The provision you're speaking of isn't an eligibility provision.)

  • Roger S||

    Yes, the meaning is clear. We don't need judges to invent some new interpretation.

  • jph12||

    That same textbook says

    "It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him . . .

    As to children born at sea, if they are born in those parts of it that are possessed by their nation, they are born in the country: if it is on the open sea, there is no reason to make a distinction between them and those who are born in the country; for, naturally, it is our extraction, not the place of our birth, that gives us rights: and if the children are born in a vessel belonging to the nation, they may be reputed born in its territories; for, it is natural to consider the vessels of a nation as parts of its territory, especially when they sail upon a free sea, since the state retains its jurisdiction over those vessels."

    Note especially

    "for, naturally, it is our extraction, not the place of our birth, that gives us rights"

  • David Nieporent||

    Oh, god, we've got a birther nut here. First, Vattel was describing continental law. American law, of course, did not derive from continental law, but from English law. And English law did not use the phrase "natural born" in this context in the way you're using it. There is zero evidence that the founders thought about, let alone relied upon, Vattel's work when drafting the constitution.

    Second -- and this is sort of a minor flaw in the contrary position -- even if the founders used Vattel's work as a reference, Vattel didn't write a single word about the concept of "natural born citizen." The phrase never appears in the Law of Nations.

  • ||

    Two points.

    1. "Natural born citizen" has had the same meaning for the last 240 years, and you summarize it well in paragraph 7; "someone who was a U.S. citizen at birth with no need to through a naturalization proceeding at some later time."

    2. To the extent that this is becoming a "big deal" for some people, we can see that the scope and power of the Federal government has grown ALL out of proportion. Who the President is shouldn't matter all that much, and if it does, then the President has too much power.

    The whole purpose of the "natural born citizen" clause must be to ensure that no foreign invader can ever become president, and I think this is still a valid concern even now when the United States has been, since 1945, the most powerful nation on Earth. Even with the Obama "birther" controversy, which raised valid fears that someone without any loyalty to the United States, the clear decision was that Barack Obama was a "natural born citizen" by virtue of his clearly American mother, no matter where he was born.

    To allow an immigrant a path to the highest office in the land is to risk everything on being able to ensure that somebody from, for example, Austria, does not become President and distort everything we hold dear. (Not that Arnie hasn't been trying to screw things up anyway.)

  • Brett Bellmore||

    " Even with the Obama "birther" controversy, which raised valid fears that someone without any loyalty to the United States, the clear decision was that Barack Obama was a "natural born citizen" by virtue of his clearly American mother, no matter where he was born."

    Wrong. Very wrong.

    Per the statutory law of the time, it wouldn't have been enough for him to just have an American mother, or father, and be born abroad, in as much as his mother hadn't spent enough time in the US. The statutory text is clear: If he hadn't been born on US soil, he wouldn't be a natural born citizen.

    It was also clear in the case of John McCain, who was also not a citizen at birth, due to not being born on US territory, per the statute in effect at the time of his birth. Congress a few months later amended that statute, to cover people born under the same circumstances as McCain, and purported to make the amendment retroactive, but you simply can't retroactively make somebody a citizen at the moment of their birth.

    Fortunately, he was running against Obama, who had his own reasons to not contest the issue. But in that election, there was an unconstitutional candidate, and it wasn't Obama, it was McCain.

  • loveconstitution1789||

    Exactly Brett. McCain should have had a "birther movement" against him too if the lefties cared about the Constitution.

    Obama's "birther movement" against him was because the left does not like the Constitution, so anyone raising constitutional issues against one of their candidates is someone to be made fun of. It was no joke. Until Obama presented some evidence (his birth certificate) that he was born inside US territory, he was not qualified to be president as a natural born citizen. Obama later released his birth certificate that listed he was born at a Hawaiian hospital with a doctor's name to verify the birth.

    The concern was that Obama could have been born outside US territory and his mother could have lied on a birth certificate form that Obama was born in the USA. Some people know how valuable being born an American natural born citizen is.

    The lefties hate the Constitution, so its all one big joke to them.

  • Sarcastr0||

    Hehe - this is some vintage 'area man passionate defender of what he believes the Constitution says.'

    'The liberals didn't to the partisan thing conservatives did. This is because they hate the Constitution. They also argued against the partisan thing conservatives did. This is because they hate the Constitution.

    In sum, liberals hate the Constitution.'

    Sounds more like you hate having people disagree with you about the Constitution...

  • loveconstitution1789||

    Disagree all you want. I would be happy to hear all your positions. You can be thankful of the 1st Amendment for that.

    That still does not change the language of the Constitution and what it says.

    You can disagree with absolute guns rights and say that guns are scary and should be controlled. That's your opinion. Government controlling Arms is strictly prohibited by the 2nd Amendment. Your opinion does not change that.

    You think that your opinion changes the rules set forth in the constitution. They don't but I would be happy to discuss your opinions.

  • Sarcastr0||

    My positions on what? On whether I hate the Constitution? I'm actually a big fan. Especially of the Bill of Rights. Sometimes I wish we were a parliamentary system, but bicamerality and checks and balances are incredible innovations.

    Except maybe the 3rd, no other rights in the Constitution are absolute. Libel, traffic stops, time/place/manner, Miranda. Are guns privileged above those?
    And what is control? Is mere registration control?

    I'm sure I'm wrong about some stuff. But I think my opinion about what the Constitution means and how it operates is no less reasonable than yours. Well, maybe a bit more reasonable than yours, since you've declared yourself Grand Constitutional Arbiter Above All.

    Have some humility, man.

  • LawDog||

    The remedy would have been "President Sarah Palin." Would YOU mount a challenge???

  • Josh R||

    The law at the time of McCain's birth declared that "Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States is declared to be a citien of the United States."

    Thus, had his mother given birth at a Panamanian hospital outside the Canal Zone, McCain would have been a citizen at birth. It thus strikes me as absurd that McCain wouldn't be a citizen at birth because he was born in the Canal Zone. In my opinion, Congress's subsequent amending of the law merely recognized that absurdity rather than retroactively changing the statute.

  • Sebastian Cremmington||

    If a court actually declared McCain ineligible after winning in 2008 then an amendment would have been passed overnight to make him eligible. The Framers did make mistakes like with the Electoral College but they also had no problem correcting their mistakes

    I think the major candidate most likely ineligible was George Romney who was born in Mexico to parents exiled from America...and a big Reagan backer had no problem saying he was ineligible.

  • ragebot||

    The Electoral College was necessary to ratification of the Constitution; the smaller states would never have joined the Union without it. It's purpose was to prevent more populous states from dominating less populous states. So a state like CA could not swing an election to Hillary as happened in the last election. Mistake or not it was a requirement for the nation to be formed.

  • Joe_JP||

    The Framers at best would apply to things up to the 12th Amendment.

    So, no mistakes other than state immunity (at least in that fashion of the 11A) and the VP (which leaves most of the Electoral College as it was)?

    The McCain hypo might be true though doubtful the Supreme Court (a district judge doing it wouldn't have been in the end of the line) would have.

  • SchillMcGuffin||

    When I was in law school thirty-some years ago, I had a Con-law professor who proposed that the Equal Protection Clause of the 14th Amendment effectively negated the "natural born citizen" provision. I don't think I've ever heard that argument since, but it seems like it could find some traction if raised -- while the 14th, strictly speaking, requires equal protection only of the states, but the Supreme Court seems to have found a similar Federal obligation under the Fifth Amendment's Due Process Clause.

  • Krayt||

    I'm sad when unforseen twists on the Constitution, to expand its power for certain desirous factions, suddenly finds some traction.

  • KBCraig||

    Citizens are either natural-born, or naturalized.

    It's not that damn complicated.

  • Noscitur a sociis||

    So which kind is Ted Cruz?

  • Brett Bellmore||

    Natural born, per the law at the time he was born. Not even a close case.

  • apedad||

    Agree with BB.

    Even though people (on both sides) will try to score points bringing up non-standard births (like Cruz's), it's really a non-issue and they're usually raise smoke and dust.

    (spaces added) https:// www.cbsnews.com/ news/huckabee-santorum- join-gop-voices-in-questioning- cruzs-citizenship/

    I don't mind the time and money spent on questioning a person's citizenship.

    It's part of the vetting process.

  • Perseus`||

    This is a solution in a search of a real problem. The real problem is the imperial presidency, not who is eligible to wear the crown.

  • Eidde||

    One argument for an amendment is to give the people the chance to exercise their constitutional-amendment muscles, re-accustoming themselves to the idea that constitutional change comes through the amendment process, not just by the federal government grabbing power for itself in the guise of re-interpreting the constitution.

    And what better object on which to exercise the people's constitutional muscles than modifying an unreasonable provision on the Presidency. Time and again, the Founders' work has had to be modified where the Presidency was concerned.

    The 12th Amendment was needed to make the Presidential election process less Rube Goldbergesque.

    The 20th Amendment provided some corrections and clarifications regarding the Presidential lame-duck term, and Presidential selection and election.

    The 22nd Amendment stopped the Presidents from accumulating power over multiple terms.

    The 25th Amendment updated provisions on Presidential succession and disability.

    The people made all these needed tweaks to the Presidency, and now they should make this extra tweak by putting an end to unfair discrimination against our naturalized fellow-citizens, and maybe opening the Presidency to a bigger pool of talent.

  • Eidde||

    And I would add that many of our most infamously disloyal citizens were natural-born citizens -

    -most of the fire-eating secessionists

    -the most infamous Soviet spies (Hiss, the Rosenbergs, Walker)

    -and look at the distinguished ancestry of Ezra Pound, who made propaganda broadcasts during WWII on behalf of Mussolini.

  • loveconstitution1789||

    We know what "Natural Born Citizen" means.
    Article I: 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 means that someone is born an American citizen in such a way that they are not a migrant or needs to be naturalized later to be a US citizen.

    The Constitutional clause for presidential requirements separates "natural born citizen" and citizen of the USA, at the time of adoption of the Constitution. This was because the all the Founding Fathers were NOT natural born citizens. They were citizens of the new United States of America though.

  • mad_kalak||

    Straws officially grasped at. This 3rd post on the same topic is now asking us "but what does it really *mean* to be a natural born citizen" as if the few cases at the margin like Cruz or McCain make the whole thing worthless.

    This idea is going to go nowhere because polling data shows at in 2016, 75% of people support the natural born citizen requirement, something revealed with a simple internet search that I wonder if the OP took the time to do.

    It's dead. Your trial balloon is popped.

  • gormadoc||

    If 75% of the population supported gun control would you just roll over and let it happen?

  • mad_kalak||

    Apples and oranges. One is right the other isn't. You don't have a "right" to be able to run for president, you're either natural born or you're not. Sorry if it's not "fair."

    The OP is asking to change the system, so the onus is on him to convince those in that 75% that it's worth changing a system that has worked fairly well so far. Meanwhile, owning a gun is a right, and a right is not (in theory) supposed to be up for majority debate, which is why its a right.

    A better analogy would be that 75% of people support the right to own a handgun as protected by the 2nd Amendment, therefore it's necessary to convince them to amend the Constitution such that handguns could be banned. Trust me, the Brady Campaign and others are hard at work doing so every day.

  • John Rohan||

    Republicans should make a deal on this. Repeal the natural born citizen clause, in exchange for repealing the jus solis clause in the 14th Amendment, that allows anyone born here to be a citizen, even if their parents are here illegally.

  • Sarcastr0||

    As a nationally renowned arbiter of liberalism, it is important you know I wouldn't take that trade.

    Birthright citizenship is one of my favorite things about America.

  • Sebastian Cremmington||

    Wow, you must think the current Germans are Nazis for having recently reformed their citizenship laws?!? Ireland did the same thing so you must think they are also Nazis.

  • Eidde||

    This assumes it's Republicans holding up an amendment.

    But there seems to be bipartisan indifference.

    Congress operates on the "postpone an issue in hopes it goes away or someone else will solve it, then in an emergency, or in the aftermath of a tragedy, pass panicky and unwise laws" principle.

  • mad_kalak||

    "postpone an issue in hopes it goes away or someone else will solve it, then in an emergency, or in the aftermath of a tragedy, pass panicky and unwise laws, which get punted to the Courts to figure out how exactly they apply because Courts are not electorally accountable"

    FIFY

  • ||

    Under the exclusive-citizenship theory, 'consent to be governed' at birth is accomplished by the transfer of allegiance from the child's two-citizen parents. This is exactly what one would expect if the founders and framers of the U.S. Constitution intended to combine the offices of the presidency (an elected position) and the Commander in chief of the nation's armed forces (an appointed position).

    If we abandon the natural born citizenship clause now, it will be exploited by others who may not have the best interests of this nation at heart, and expose us all to the greatest threat the founders and framers knew well, feared most, and warned us about -- the loss of our freedoms and liberties not from an external military threat but from political subversion from within our own political system.

    When you stop and realize virtually all executive power in this country is held by one person as the commander in chief of all of this nation's armed forces and also take into account the vast increase in speed and destructive firepower modern weapons now have over their 18th Century counterparts, you begin to realize just how important this requirement has become in today's turbulently shrinking world, and how important it is to apply the narrowest of definitions to the "natural born citizen" requirement rather than standing on the threshold of abandoning it altogether -- forever.

  • jph12||

    "you begin to realize just how important this requirement has become in today's turbulently shrinking world, and how important it is to apply the narrowest of definitions to the "natural born citizen" requirement rather than standing on the threshold of abandoning it altogether -- forever."

    You might. I don't. I think that the world has changed enough that the danger of a foreign-born agent with ill intent becoming president is remote enough that the proposed amendment is a good idea.

  • ||

    "(The best formulation of Cruz's position is that "natural born Citizen" means "someone who was a U.S. citizen at birth with no need to through a naturalization proceeding at some later time.)"

    The best formulation of an Art. II §I Cl. 5 "natural born Citizen" means "someone who was born exclusively under U.S. sovereignty, with no foreign allegiances or attachments at birth."

  • Roger S||

    Cruz was a citizen of Canada. That ought to be reason enough to disqualify him.

  • ||

    Additional, Sen Cruz was statutorily naturalized at birth via the 1952 Immigration and Nationality Act (INA).

  • Roger S||

    Why are you so eager for a foreigner to be President? Wanting to be ruled by a foreigner is a good example of cuckoo thinking.

  • jph12||

    Deleting "natural born" doesn't delete the citizenship requirement.

  • regexp||

    Its not a question of eagerness. I would put most immigrants I know ahead of most native born Americans (especially conservatives) in their love of this country and understanding of its principles.

  • Roger S||

    The Presidency is not a reward program for people who love the country.

  • Joe_JP||

    A person who was born in Sweden to foreign parents, came here at five and became a citizen at 10.

    That person becomes President at 55.

    Not seeing where the foreigner comes in. Sounds like a person who moves to the South as a child but it always a Yankee.

  • David Nieporent||

    Uh, naturalized citizens are not foreigners. They're Americans.

  • CJColucci||

    Just in my lifetime, there have been legitimate legal disputes about the eligibility of George Romney, Lowell Weicker, John McCain, and Ted Cruz.(Barack Obama's case was a frivolous factual dispute, not a legitimate legal dispute.The factual circumstances of the other candidates' birth were undisputed, as the factual circumstances of Obama's birth should have been; it was the legal consequences that were unclear.) I have my own views about the right answers in each case, but I am far from certain that they are correct. Several distinguished public servants whose loyalty to the United States was unquestioned and whose popularity might otherwise have justified a Presidential run -- Henry Kissinger, Madeline Albright, Arnold Schwarzenegger, and Jennifer Grantholm -- were clearly ineligible. If the American people don't want non-native-born citizens as Presidents, they won't have them. I think they can be trusted to decide that for themselves.

  • Brett Bellmore||

    Obama's case would have been very speedily resolved, if not for him fighting in court against his birth certificate's release.

    A fight which appears to have had no purpose but to prolong the controversy. I guess because so long as his enemies were obsessed with a false weakness, they'd be too busy to uncover a real one.

    It was still his own fault the matter wasn't settled within days.

  • Sebastian Cremmington||

    Obama's political strategy included playing a lot of petty games. As a Hillary supporter in 2008 I can tell you Hillary never took the low road but Obama took it at every fork. He refused to release a document that is public record in liberal California simply to make his opponents look like nuts...and it backfired bigly!

  • David Nieporent||

    Obama's case would have been very speedily resolved, if not for him fighting in court against his birth certificate's release.

    Brett "I can't be sure he was born in the U.S. since I wasn't in the delivery room" Bellmore is lying. Obama released his birth certificate from the very beginning.

  • Brett Bellmore||

    Then what was it that got released when a judge finally scheduled a hearing on the merits? What was he repeatedly going to court to fight? Of course he was fighting the release of something. Democrats were even claiming its release was illegal, up to the moment Obama relented, and the original birth certificate was released.

    And my position on the matter, from the very beginning, was that it wasn't flatly impossible that Obama wasn't born in Hawaii, but that it was extraordinarily unlikely, given that nobody would have known at the time that there was any need to falsify things.

    I only thought that the birthers were entitled to lose in an actual court hearing, on the merits.

    But I get labeled a "birther" for refusing to declare the unlikely categorically impossible.

  • CJColucci||

    A frivolous lawsuit can always be settled quickly by giving the frivolous litigant what he says he wants. That doesn't exculpate the frivolous litigant.

  • Roger S||

    I have decided. I don't want to be ruled by Kissinger, Albright, or any other foreigner. Obama's legality was questionable, and I would have preferred that he were ineligible.

  • jph12||

    I don't want to be ruled by anyone. That's why I'm glad I live in a country that elects leaders, rulers. Even if most of them aren't very good at it.

  • bernard11||

    Obama's legality was questionable

    No. It wasn't.

  • CJColucci||

    You have decided. That's fine, but you're only one vote. Why shouldn't other voters who feel differently make their own decisions?

  • WJack||

    Is there a shortage of natural born citizens? If so Somin is busy trying to solve the problem.

  • GregNH||

    The idea that all persons who are a citizen at birth, are 'natural born citizens' cannot possibly be accepted for the simple reason that NO part of the Constitution can be interpreted in such a way as to make any part of the Constitution irrelevant. What that means is that the Constitution MUST be interpreted in such a way that every word in relevant. The idea that 'citizen at birth' equates to 'natural born citizen' ignores the word 'natural'. If the intention was otherwise, they would have simply said a 'born citizen', or a 'citizen at birth' or 'born a citizen'. So it is clear they intended something else. So - what does the word 'natural' mean in the context of 'natural born citizen'?
    There are two types of law. There is 'positive law' - this is man-made law, such as the Constitution, laws from Congress, state law, local ordinances, and so on. And then there is 'natural law' - this is the law of nature, or the divine. An example would be when the founders wrote the Declaration of Independence, and stated :

    "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."


    That is a form of natural law. So, the term 'natural born citizen' means EXACTLY what it says, a citizen at birth according to natural law.

  • David Nieporent||

    There is no such thing as a citizen according to natural law. Citizenship is always a question of positive law.

    That citizen at birth equates to natural born citizen does not ignore the word natural. It is not "clear" they intended something else, as evidenced by the fact that the vast majority of people who have studied it, as opposed to people who got their law degrees from twitter university, disagree with you.

  • GregNH||

    What positive law declares a person born in the US to two of it's citizens? That person is clearly a Citizen.

  • bernard11||

    What positive law declares a person born in the US to two of it's citizens?

    Gee. Maybe we need a Constitutional Amendment to solve this. It could say something like:

    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.

    Would that do it?

  • GregNH||

    John Bingham, "father of the 14th Amendment", the abolitionist congressman from Ohio who prosecuted Lincoln's assassins, reaffirmed the definition known to the framers, not once, but twice during Congressional discussions of Citizenship pertaining to the upcoming 14th Amendment and a 3rd time nearly 4 years after the 14th was adopted.

    The House of Representatives definition for "natural born Citizen" was read into the Congressional Record during the Civil War, without contest!

    "All from other lands, who by the terms of [congressional] laws and a compliance with their provisions become naturalized, are 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. Gentleman can find no exception to this statement touching natural-born citizens except what is said in the Constitution relating to Indians." (Cong. Globe, 37th, 2nd Sess., 1639 (1862)).

    The House of Representatives definition for "natural born Citizen" was read into the Congressional Record after the Civil War, without contest!

    "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." (Cong. Globe, 39th, 1st Sess., 1291 (1866))"

    No other Representative ever took issue with these words on the floor of the House.

  • GregNH||

    OK - what is a citizen by natural law? Remember, a natural law is one that is unwritten. So a citizen by natural law, would be a citizen that would require no man made 'positive' law to be a citizen. So, when is someone a citizen without need of any positive law? When they can be nothing else. Does that sound familiar? Ever heard someone answer a question with the word 'naturally', because the answer could be nothing else? "Does Monday come after Sunday? Naturally!" Who can be nothing other than a citizen at birth, and therefore requires no positive law?
    There are 4 basic variables governing citizenship.

    1. Born in or out of a country.
    2. Both parents are citizens.
    3. One parent is a citizen.
    4. Neither parent is a citizen.

    The first (where born) is combined with the other 3 to determine whether or not a child is a citizen at birth. There are laws written to govern every situation - except one. The only situation not covered by positive law is when a child is born in a country, and both parents are citizens of that country. Why? Because no law is required, the child is a citizen 'naturally'.
    'Natural Born Citizen' simply means, a person born a Citizen according to the law of nature.

    What is important about the 'law of nature'? There is a legal term Jura naturæ sunt immutabilia - and it means, "The laws of nature are unchangeable".

    The Congress CAN NOT declare a person a 'Natural Born Citizen', because they CAN NOT change the definition, it's immutable.

  • Brightly||

    And the next topic the Volokh Obfuscation will visit is whether we'll ever actually know what having national border actually means.

  • Joe_JP||

    The fact that term is unclear is not unique to this issue and I think a good case can be made that the Congress has the power to clarify what this specific term means.

    "The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

    And, that's fine. There is probably a reasonable core of what it means with some dispute around the edges. Anyway, there is danger for problems to arise and given the provision is not worth it, one more reason to get rid of it.

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