So now we need to get rid of the “natural born citizen” test?

posted at 8:31 am on January 9, 2016 by Jazz Shaw

As with every election cycle, suggestions about amending the Constitution are all the rage these days. Whether you’re looking for a full blown Constitutional Convention or some individual tweaks like the balanced budget amendment, there are plenty of folks who are eager to take the founding documents out for a spin and bring them more in line with the 21st century. But recent national discussions over the qualifications of candidates ranging from Barack Obama to Ted Cruz to John McCain have WaPo writer Ruth Marcus up in arms and she thinks it’s time to remove one of the only two qualifications to be President.

Donald Trump has us all spun up in a bogus debate over the meaning of what constitutes a “natural born” citizen and whether Canadian-born Ted Cruz is thereby ineligible for the presidency. The conversation we should be having is about how stupid and cruel the requirement is in the first place, and how the Constitution should be changed to abolish what is arguably its worst remaining provision.

Our founding document contains many clauses that may be archaic and irrelevant but are nonetheless inoffensive. The problem with the natural-born-citizen test is that it is both unnecessary and harmful — not just a relic but an insult to the nearly 20 million Americans who are citizens by virtue of naturalization.

“This restriction has become an anachronism that is decidedly un-American,” Sen. Orrin Hatch (R-Utah), said in offering a constitutional amendment to repeal it more than a decade ago.

I’m not immediately opposed to the idea of amending the Constitution. After all, the Founders put in provisions to do precisely that with an eye toward the possibility that they may have missed something or that conditions in the future might require adjustments. But they also made it a time consuming, difficult process which would require a clear, sustained mandate from most of the nation. It should be hard to amend the Constitution, and we should have a very clear and pressing reason before attempting to do so. Does removing the requirement for presidential aspirants to be a natural born citizen qualify?

Looked at in a vacuum, I’ll freely admit that the author’s argument has some populist appeal. After all, don’t we already give naturalized citizens all of the rights, responsibilities and benefits which come hand in hand with being born and raised in the country? I’m hard pressed to think of any area where restrictions are placed on the naturalized except for the ability to run for President. But that’s really the point here. With that one, single exception, the naturalized aren’t really a “second tier” of citizens. There’s only that single job which they can’t aspire to, and in practice that’s true of pretty much everyone else in the country as well.

More to the point, the Founders had a reason for putting the requirement in there. Being President isn’t just another job. It’s the person who will take the helm and lead the nation, as well as our military. The authors of the Constitution didn’t want to risk someone who might harbor a deep seated loyalty to another nation landing in a position of such power. But Marcus argues that any such danger has long since passed.

That risk, Sarah Helene Duggin and Mary Beth Collins explained in a 2005 article in the Boston University Law Review, is no longer present. “Any historically legitimate justification for the proviso faded away long ago,” they wrote. “Fortunately, our independence from England is now secure, and the United States has grown from a fledgling former colony into the most powerful nation in the world.”

Maybe. Then again, maybe not. Is that a chance we really want to take? If the vast majority of Americans agree then we could surely make such a change, but I’m content to leave it to the wisdom of the Founders and keep the status quo. But that doesn’t mean that some work couldn’t be done in this area. For one thing, as I’ve argued here before, it would be nice to have the Supreme Court take a look at our federal naturalization laws, specifically at the definitions of who qualifies for citizenship at birth, and give us some definitive clarification.

Over the holiday break I was sent a link to an article from the Harvard Law Review which attempts to claim that everything is already clearly defined.

The Constitution directly addresses the minimum qualifications necessary to serve as President. In addition to requiring thirty-five years of age and fourteen years of residency, the Constitution limits the presidency to “a natural born Citizen.”1×1. U.S. Const. art. II, § 1, cl. 5. All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.2×

While it may sound a bit wonky, take a moment to read through that article if you find the subject of interest. In one key area I agree with the authors: there is clearly a difference between a natural born citizen and a naturalized one and the Constitution is clear as to which can or cannot run for the presidency. But where I think the authors go for a bit of a reach is in switching from what the Founder wrote to what, “Congress has made equally clear…”

Those are two different things. Congress has made any number of things clear over the past couple of centuries and they have, on occasion, gotten it wrong and had to be corrected by the Supreme Court. That’s never happened on this question. Some aspects our current laws regulating this matter seem obvious. If both parents of a child are citizens who are serving (or even just traveling) abroad when mom goes into labor and have every intention to return home, few would question that the child is a citizen and the Founders would, I think, heartily agree. But what about when only one is a citizen? More to the point, how is it that fourteen years of presence in the country is good enough, but thirteen is not? Is that what the Founders meant? (I’m not saying it’s not… just that they weren’t very clear on that point.) And how about if the citizen parent has “taken an oath” to another country when becoming a citizen there? Is their US citizenship revoked automatically as implied in current law?

The point is, there are obviously some questions out there on the table. It would be nice to get a full SCOTUS review and nail all of this down once and for all. Otherwise this is going to keep coming up over and over again.

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Comment pages: 1 2

If we do have a convention, we should clarify this, along with the anchor-baby issue and eligibility for benefits and voting rights.

Democrats favor the relaxation of all restrictions because it suits their rent-a-mob ground game. But we have sufferred terrible costs for the routine bypass of all citizen tests. The voter anger isn’t just about the occasional terrorist.

If that constitutional change cannot happen, leadership needs to enhance penalties and prosecutions under existing law, and of course deportation until the situation is manageable.

This presidential eligibility issue is a microcosm of the war against citizens. Obama was exactly the person this was intended to prevent, but the establishment let it slide. Strictly, he wasn’t fit to practice law, to run for office, to vote or take a government job. And here we are…looking hard at Cruz.

Wow! It’s too late to change anything for Cruz. If we move forward it will be with a wink at Obama and a half curtsy to the Constitution.

virgo on January 9, 2016 at 5:02 PM

For one thing, as I’ve argued here before, it would be nice to have the Supreme Court take a look at our federal naturalization laws, specifically at the definitions of who qualifies for citizenship at birth, and give us some definitive clarification.

The legislature defines who is a citizen at birth. There’s nothing for the Supreme Court to do; there’s no ambiguity, nothing to settle. An arbitrary pronouncement from Olympus that “it shall ever be thus” would be truly, truly terrible.

I’m voting against you on this one. Twice, if I can find a body.

— but, in exchange, for family harmony, I’ll go ahead and vote for your bill to rename Arizona “Shaw’s Sandy Area.”

Axe on January 9, 2016 at 5:13 PM

This presidential eligibility issue is a microcosm of the war against citizens. Obama was exactly the person this was intended to prevent, but the establishment let it slide. Strictly, he wasn’t fit to practice law, to run for office, to vote or take a government job. And here we are…looking hard at Cruz.

Wow! It’s too late to change anything for Cruz. If we move forward it will be with a wink at Obama and a half curtsy to the Constitution.

virgo on January 9, 2016 at 5:02 PM

Obama was eligible, being born a citizen, and Cruz is eligible, also having been born a citizen.

I agree that the spirit of the law, requiring a natural citizen and not a naturalized citizen, was to prevent a European-minded President, but it obviously doesn’t offer comprehensive protection. Maybe it’s protected Americans generally, but an Obama is still possible, since, in hindsight, a person can be politically European, African, or otherwise completely out-of-sync, yet have been born on American soil to two American parents who were likewise born on American soil to . . .

Axe on January 9, 2016 at 5:28 PM

*having been

Axe on January 9, 2016 at 5:30 PM

Amend the Constitution to require that a person be preceded by 3 generations of US-born citizens. Look how easily our system is gamed now. We sure don’t need someone inserted from abroad who gets there merely by buying their way into US citizenship.

I swear, we treat the best citizenship in the world like its common trash…we let anyone in.

avgjo on January 9, 2016 at 5:35 PM

PS
I know many here already know it, but Orrin Hatch is a POS traitor.

avgjo on January 9, 2016 at 5:36 PM

Maybe President Cruz won’t give the nuclear football to Justin Trudeau.

But do we really want to take that chance?

MJBrutus on January 9, 2016 at 6:14 PM

Getting rid of it isn’t necessary. But the clause could be very heavily clarified to reduce confusion. I mean, when the bulk of presidential candidates in the past decade had some question of eligibility due to this clause, somethings not working right.

WolvenOne on January 9, 2016 at 6:25 PM

I would argue that the provisions in the constitution allows anyone the freedom to hate the country. And hate the president, politicians and each other.

Walter L. Newton on January 9, 2016 at 9:29 AM

Thank you, Walter, for providing the perfect example of someone being intentionally obtuse.

Solaratov on January 9, 2016 at 6:47 PM

Also, I’m pretty sure that the St. Francis of Assisi School in Jakarta was not a Muslim school.

urban elitist on January 9, 2016 at 10:17 AM

But the madrassa that he attended certainly was.

Solaratov on January 9, 2016 at 6:55 PM

We don’t need to amend the Constitution. We have an executive branch that rewrites, ignores or makes law, a judicial branch that also makes laws, unelected officials writing and enforcing regulations, and a Congress that passes ginormous laws they don’t even bother to read. Too much money and power flowing through to few hands.

racquetballer on January 9, 2016 at 7:22 PM

The legislature defines who is a citizen at birth.

Axe on January 9, 2016 at 5:13 PM

They did, and here’s the result:

The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;

Not exactly a stellar job of it, I’d say.

Source:

Lance Corvette on January 9, 2016 at 7:27 PM

Link didn’t take.

Here’s the source:

https://www.law.cornell.edu/uscode/text/8/1401

Lance Corvette on January 9, 2016 at 7:27 PM

The legislature defines who is a citizen at birth.

Axe on January 9, 2016 at 5:13 PM

They did, and here’s the result:

The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;

Not exactly a stellar job of it, I’d say.

Source:

Lance Corvette on January 9, 2016 at 7:27 PM

OK, Yes, but you missed a spot:

———-

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: provided that the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: provided that any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

Axe on January 9, 2016 at 8:30 PM

Donald Trump has us all spun up in a bogus debate over the meaning of what constitutes a “natural born” citizen and whether Canadian-born Ted Cruz is thereby ineligible for the presidency.

Just a clarification…

Trump pre-detonated a landmine that liberals were planning on Cruz’s path. It’s better to be addressed now instead of later. Does anyone really think they wouldn’t bring it up if Cruz somehow won the nomination? In fact, I’m pretty sure they would be willing to challenge up to the Supreme Court if necessary. Think about what they did to a certain governor of Alaska…

dominigan on January 9, 2016 at 8:33 PM

Just a clarification…

Trump pre-detonated a landmine that liberals were planning on Cruz’s path. It’s better to be addressed now instead of later. Does anyone really think they wouldn’t bring it up if Cruz somehow won the nomination? In fact, I’m pretty sure they would be willing to challenge up to the Supreme Court if necessary. Think about what they did to a certain governor of Alaska…

dominigan on January 9, 2016 at 8:33 PM

That’s basically what T was saying as well.
The Dems will challenge anything about the qualifications for someone they despise, including “and” and “the”–

AesopFan on January 9, 2016 at 10:35 PM

Axe, don’t agree that we know Obama was a citizen. We are presuming it after much debate that would normally have been resolved by the simple production of a physical document, that most people have to do on a routine basis. His obfuscation caused the birther phenomenon.

We are left with the possibility that he was born in Hawaii but that his actual certificate contains other information unhelpful to his biography (religion or father), or that he was only registered in Hawaii but born elsewhere. Both of these cast a shadow on his legitimacy.

It’s still too political and only history will tell the truth as to why this president could not definitively answer the citizenship question.

Cruz needs to put out all the documentation and explain which of the exceptions applied to his case. The American people should not have to go through this uncertainty again.

People can say that they want to get back to the issues but everyone knew he was born in Canada before he ran so he is going to have to overcome that. It’s not that the rest of us need to shut up. Proof of Eligibility, not just a claim, is important, even if it was skirted last time.

virgo on January 9, 2016 at 10:37 PM

And we still don’t have valid birth certificate verification from Obama.

Double standard much?

Younggod on January 9, 2016 at 8:34 AM

And…let’s say Obama was born in Kenya. His mother is a U.S citizen right? What is the difference between that and Cruz? The birther thing has gotta die.

wsucoug on January 9, 2016 at 10:36 AM

Enough already with your “birther” horseshit. If you’re going to ape the progressive propagandists do it at Daily Kos.

Obama has yet to produce a valid birth certificate. People can speculate about why that is, but it is a fact. Period.

What’s troubling is that Barky has gotten a free pass for the past eight years on his birth eligibility to be president.

But when a conservative Republican shows up as a dot on the presidential horizon, all hell breaks loose about the question of his birth eligibility. Oh the upheaval. Oh the doubt! Oh the obstacles. Oh how it can never be.

Tired of it. Tired of tools like you who think it’s fine to engage their political opponents with one hand tied behind their back. Tired of dimwits and nimrods with their thumb up their ass and their finger up their nose while the republic burns.

Apparently I’m not the only one. It seems there are millions upon million upon millions of American patriots are fed up too.

Which is why Donald Trump is going to be the next President of the United States.

And why you and people like you regurgitating “birther” cliches are nothing but useful idiots.

Younggod on January 10, 2016 at 2:44 AM

apparently no one has checked Trump’s parents yet as both were “immigrants”, unknown as to legality and may not have been Citizens when Trump was born…

BTW Rubio’s even more suspect as both parents were Cuban refugees, NOT Citizens the perfect anchor baby…

a Citizen is either natural born from parents or naturalized or NOT.. as Cruz got citizenship from mother born/raised in Delaware it’s obvious this is a bogus smear.

mathewsjw on January 10, 2016 at 4:12 AM

In 1930, an 18-year-old Mary MacLeod sailed for America from Glasgow on the S.S. Transylvania, according to a copy of the ship’s passenger list on Ancestry.com. MacLeod arrived in New York and married Fred Trump, the son of German

Trump’s father was born here. His grandfather was an immigrant. Mary MacLeod was naturalized March 10, 1943, three years before Trump was born. The real question is: Is he immortal? There can only be one.

ezspirit on January 10, 2016 at 5:37 AM

This birthed junk needs to just stop. If citizenship,attached to someone upon birth rather than being acquired later on they are a natural born citizen full stop. End of story. End of argument. Anything else is sophistry.

Arssanguinus on January 10, 2016 at 7:09 AM

How can you be a natural born citizen if you were naturally born in another country,to parents who had renounced their citizenship?End of argument,anything else is just being a Cruzbot.

redware on January 10, 2016 at 12:18 PM

Ted Cruz was naturalized at birth by Federal statute. Naturalization by statute at birth is not the same as being a natural born citizen.

A natural born citizen requires no statute to receive citizenship. They acquire their citizenship by the nature of their birth — on American soil, to two American citizen parents.

Just because Obama got away with subverting the requirement doesn’t mean that the Constitution goes out the window. Republicans are still bound to follow the Constitution even though the Democrats violated it.

Talking American conservatives into ignoring the Constitution is VERY much part of the agenda of the left. They hate the Constitution and want to simply set it aside and ignore it. The exact words of the Constitution are either important or not. Which side are you on?

jms on January 10, 2016 at 7:32 PM

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