Inquiring minds want to know, including mine so I have been studying this question for over a year. Wishing to have something published so I could talk about it on a very interesting radio show dedicated to this kind of question, I found this article from last year. Of course I couldn’t resist editing it a little, so it’s been updated. A much longer version will be ready soon. Watch this site.
Who is a Natural Born Citizen?
April 24, 2016
March 11, 2015, The Harvard Law Review Forum, published a Commentary by Harvard law graduate, Paul Clement, former Solicitor General in the George W. Bush Administration and Yale law graduate, Neal Katyal, former Acting Solicitor General in the Obama administration.(Paul Clement and Neal Katyal, (http://harvardlawreview.org/authors/neal-katyal/.) Retrieved April 24, 2016.)
Their commentary was treated by the Washington Post and other media outlets as the authoritative bi-partisan final word on this question, retrieved April 24, 2016). The case was closed. No one needed to say anything else. But is the case really closed? Katyal and Clement use British common law to argue that anyone born in the United States is a natural born citizen.
The sarcastic me wants to say, “They couldn’t be more wrong, as those born by Caesarian section are hardly “Naturally Born.” But sarcasm is not necessary to show they are wrong; a few facts will suffice. The British empire claimed as a subject, every baby born in the Empire (and if male, available for service in the King’s Navy – remember the War of 1812?) However, unlike American citizens, all British subjects, back then, did not have the same rights. All British citizens were not equal. In fact, we fought a war for Independence from a Parliament that did not represent us as equal citizens; remember, “No taxation without representation?”
We now have our own WRITTEN law based on the U.S. Constitution, and every citizen has the same rights under it, with one small exception, if one considers being President a right. (It’s really more of a job qualification.)
We fought another war after Chief Justice Roger Taney declared that the Constitution was written only for white men. Prior to the Dred Scott decision, most Americans believed the Constitution was written to fulfill the Declaration of Independence’s “All men are created equal….”
When civics was required in schools, students learned by 9th grade, that a “naturalized citizen” is not the same as “a natural born citizen.” The former is naturalized based on laws passed by Congress pursuant to Article I, Section 8, Clause 4. While these babies are citizens from birth, they are not eligible under the strict requirements of Article II to be President of the United States, at least not if we follow the Founders intentions. The reason for this “job requirement” is simple: our Founders feared foreign influence upon the office of the President and Commander-in-Chief. (Not in the 2016 version of this article – but I cannot resist adding here – that there may not be any Russian collusion this time, but the idea that foreign intervention is possible is obviously not a ridiculous one.
Should the President have a parent with dual loyalties, the President himself might also eligible for citizenship in that parent’s home country, just the same as children born abroad to U.S. citizens are. Does that mean he might be less loyal to his native country?
Globalists say borders don’t matter anymore. But most Americans think it’s quite a risk to allow someone who holds the nuclear football, the keys to America’s national security and the well-being of American citizens to also have ties to another country. Ergo, the Founders also believed that simply being born an American is necessary but not sufficient for the President of the United States. Both of the Presidents’ parents have to be citizens (being naturally born citizens is not necessary for them), but the Presidents themselves, must meet three strict requirements; be naturally born citizens, 14 years of resident in the United States and 35 years of age. About the time we stopped teaching civics in a serious way, the federal bureaucracy began handing out passports to anyone born on U.S. soil and birth certificates began to list all U.S. born babies as citizens. As a result of both these developments, people are easily confused. However, these practices do not change the Constitution; it can only be changed constitutionally by amendment pursuant to Article V.
The Constitution was designed for the people, not just for lawyers such as Clement and Katyal. It is only 4,400 words long, easily read and easily understood. While I do not have a law degree, I do have a PHD and I have been teaching the Constitution to students of all ages, from five to eighty-five for the last 30 years. When lawyers teach Constitutional Law, they focus on case law (and often never read the Constitution in class); when historians and political scientists such as myself, teach it, we focus on the words of the actual Constitution. Big difference. As a student of history and a professor, I have spent a great deal of time reading original documents. I suggest Katyal and Clement read more closely at least one of those documents, to wit, the U.S. Constitution