Few can argue that the single most important elected office in the world is the office of the President of the United States (POTUS). As we have heard countless times, the person sitting in the oval office holds the nuclear codes and with the codes the lives of countless millions around the world.
While our Founding Fathers may not have been able to foresee nuclear weapons, they had the wisdom to foresee the necessity of having a “natural born Citizen” as the country’s president.
The Founders saw this requirement as a matter of national security. They viewed this very specific eligibility requirement as an insurance policy believing the interests of the country could be best protected by a commander-in-chief without affiliation to any foreign country.
The Founders wanted a person whose decision making would not be hampered or compromised because of divided loyalties. That means dual citizens, first generation naturalized citizens, and anchor babies are not eligible to become president. Those born with two parents who are U.S. citizens (either natural born, native born or naturalized Citizens) at the time of the birth of the child are natural born citizens. The additional requirement that the birth be on U.S. soil applies. Approximately 85% of our country’s citizens are natural born citizens and eligible to be president.
Becoming president of the most powerful nation on earth is not a right open to anyone, nor should it be. It is a constitutionally reserved privilege for those who parentage is rooted in America for at least one generation.
The presidency and vice presidency are the only offices not open to those who are not natural born citizens. However, for the 15% who do not meet the qualification, every other elected office is open to them from becoming a member of a local city council to the office of governor, senator or congressional representative.
Senator Ted Cruz, a Harvard educated lawyer who has successfully argued before the Supreme Court multiple times has laid down the gauntlet stating he is a natural born citizen eligible to run for president. Most amazingly (strike that and make it brazenly) Cruz, who was born in Canada to a Cuban father and an American mother was also born a dual citizen. His statement that the issue of natural born citizenship is settled law is rubbish. Nothing could be further from the truth.
Equally egregious, is the oft-repeated statement that because the Founding Fathers did not define what a natural born citizen is in the Constitution there is doubt as to its true meaning. Not only is there no doubt as to its meaning, there have been multiple attempts to change this very specific requirement for presidency, a point being obscured by most of the media.
The battles about the meaning of natural born citizenship have been raging for decades. Attempts to change the requirement go back to the 60s when Mitt Romney’s father George Romney considered a run for the office.
In July 2000 Congressman Barney Frank chaired a congressional committee, H.J.Res.88 , which dealt with an amendment to allow foreign-born citizens to become president. Between June 2003 and February 2008, there were eight attempts to modify the natural born citizen clause.
Most telling is S.R. 511, a non-binding resolution declaring that Senator John McCain a natural born citizen. Barack Obama, Hillary Clinton and Claire McCaskill were signers of the resolution. Logic dictates if John McCain were a natural born citizen, there was no need to declare McCain met the presidential qualification. Notice that the resolution specifies he was born of U.S. citizen parents, plural.
What is interesting, is that at the same time S.R.511 was being passed declaring McCain a natural born citizen and eligible to run for president, well-known George Washington University Law School professor Jonathan Turley concluded the exact opposite. Turley determined McCain was ineligible for having been born in Panama even though both of his parents were U.S. citizens at the time of his birth.
It is important to identify what the real fight is about and who the players are on both sides. Equally important is to understand that what we are talking about are constitutional theories each side espouses and which drive our politics and laws. Labels like conservative, liberal, Democrat and Republican are of little importance here.
The fight is between those in the legal community, attorneys, jurists, and legal scholars who believe that the natural born citizen clause is unfair and un-democratic in a country of immigrants. These players include many well-known radio and cable personalities, TV attorneys like Jeffery Toobin and Megyn Kelly and members of both political parties. These players believe in a living Constitution which evolves as we move forward generationally.
They also believe in globalization and open borders. They knowingly conflate all types of citizenship, so the meanings are indistinguishable. This group finds nationalism to be a quaint concept, as outdated as the flags and symbols defining one’s allegiance to their country. Reading attorney Sarah P. Herilihy’s paper in the Chicago-Kent Law Review detailing the rationalization behind globalization as the impetus behind abolishing the natural born citizen requirement is very revealing.
Lastly, this group also believes in situational adherence to the rule of law and to the Constitution.
The most telling statement comes from law professor Peter J. Spiro, who believes that the simplest way to eliminate the natural born citizen clause is to ignore it, to obfuscate its meaning and to disregard the rule of law.
[…] “Constitutional questions do not require constitutional decisions. If non-judicial actors, including Congress, editorialists, leading members of the bar, and the People themselves manage to generate a constitutional consensus, there isn’t much that the courts can do about it. In cases such as this one, at least, that seems to be an acceptable method of constitutional determination. “
In other words, it is okay to take little notice of the Constitution and/or laws you disagree with if you feel there is consensus to do so. He is one of many in the legal and political communities who dislike the amendment process the Founder’s gave us to change, modify and update the Constitution. Why? They find the process is too messy and time consuming. Barack Obama’s lack of enforcement of our borders and immigration policies are prime examples of situational adherence to the law and Constitution.
On the opposite side of the argument are originalists, who believe the Constitution should be followed according to the Founders original intent, believing change should be through laws and amendments. If you listen carefully, you may detect the disdain coming from a living constitution proponent when discussing originalists opposing opinions. According to law professor Thomas E. Baker, academic critics look upon originalism as a form of the occult. This was possibly said tongue in cheek, but spot on nonetheless.
With that background, let’s look at the biggest lies and half-truths are being perpetuated about national born citizenship:
- The statement Ted Cruz is eligible to become president despite being born a dual citizen. This is patently false. He knows it and so do those who support his candidacy. Some believe he has bigger problems. Cruz has yet to present a copy of his Consular Report of Birth Abroad (CRBA), form FS-240 showing his parents registered him as a U.S. citizen. Once born, Cruz’s parents should have contacted a U.S. consulate to apply for a CRBA to document that his was a U.S. citizen.
- The natural born citizenship requirement statement is “settled law “is a tall tale used to deflect attention from the truth. Liberal law professor Laurence Tribe called Cruz’s claim of natural born citizenship unsettled in a recent Guardian article. Barack Obama and Ted Cruz have a lot in common. Both were students of Professor Tribe while at Harvard. Both had foreign-born fathers and U.S. citizen mothers, both were born dual citizens. Knowing that, how is it possible that Tribe found Obama eligible for office in 2008 and now finds Cruz ineligible? The answer lies not in the law, but in Tribe’s belief that Cruz would appoint judges to the Supreme Court who are originalists and not those who believe in a living constitution like Obama.
- The statement other elected presidents were dual citizens is a half-truth; there is a “ya but” that follows. The part usually omitted is our first six presidents were also the Founders of the Constitution. They exempted themselves from the natural born citizenship requirement having been born British subjects prior to the formation of the country. A list of our 44 presidents show minus the presidents grandfathered in, there has never been a dual citizen elected president except one, Barack Hussein Obama whose eligibility has been disputed since 2008.
- The statement that the terms citizen and natural born citizen mean the same thing is false. The two terms are not interchangeable. Words have meaning. The phrase natural born is a legal term of art and has a specific meaning in the Constitution. A naturalized citizen, one whose citizenship has been determined by statue is not the same as a natural born citizen, one who was born on U.S. soil and whose parents were citizens at the time of birth. Can there be any doubt that a person holding dual citizenship is faced with potentially conflicting interests as that person’s loyalties are necessarily divided.
Each time the general public has been given the facts concerning natural born citizenship and its impact and affect on the presidency, the polls show that the citizens are opposed to amending the Constitution to allow anyone to become president.
In a 2004 USA Today/CNN/Gallup Poll only 31% of the respondents favored a constitutional amendment to abolish the natural born citizen requirement while 67% opposed such an amendment.