Donald Trump Is Right to Retweet that Marco Rubio Is Not a
Natural Born Citizen
By Mario Apuzzo, Esq.
February 22, 2016
Donald Trump is correct for retweeting that Marco Rubio is
not a natural born citizen and therefore not eligible to be President.
A natural born citizen is a citizen by virtue of birth and
birth alone. But birth does not exist in a vacuum.
There are circumstances that exist at the time of birth. Those
circumstances are, among many, the parents to whom one is born and the place
where one is born. In order to have a valid definition of the natural
born citizen, it is necessary that we take these birth circumstances and make
them part of a definition.
There does, indeed, exist a definition that contains the
necessary and sufficient birth circumstances that must exist in order for one
to be a natural born citizen. The historical and legal record
demonstrates that in order to be a citizen by virtue of birth alone,
one must be born in the country to parents who were its citizen at the time of
the child’s birth. Indeed, a natural born citizen is a child born or
reputed born in the country to parents who were its citizens at the time of the
child’s birth. See Emer de Vattel, The Law of Nations, Sections 212
to 217 (1758) (1797) ("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"); Minor v.
Happersett, 88 U.S. 162, 167-68 (1875) (“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”); accord U.S. v. Wong Kim Ark, 169 U.S. 649, 665 (1898)
("The child of an alien, if born in the country, is as much a citizen as
the natural born child of a citizen, and by operation of the same
principle"). All other birth circumstances, i.e., either not being
born in the country or not being born to two citizen parents, do not produce
citizenship by virtue of birth alone.
Since 1790, Congress has for policy reasons seen the need,
exactly for the reason that they are not natural born citizens, to naturalize
children of U.S. citizens born out of the United States and before the ratification
of the Fourteenth Amendment and its interpretation by U.S. v. Wong Kim Ark
(1898) to naturalize children born in the U.S. to alien parents. The First and Third Congress, which included
James Madison and many Founders and Framers, with the approval of President
George Washington, passed the Naturalization Acts of 1790 (An act to
establish an uniform rule of naturalization, Sess. II, Chap. 3; 1 stat 103,
1st Congress; March 26, 1790, available at http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html
) and the Naturalization Act 1795 (An act to establish an uniform rule of
naturalization, and to repeal the act heretofore passed on that subject, Sess.
II, Chap. 19, 20; 1 stat 414, 3rd Congress; January 29, 1795, available at
same). The 1790 Act provided:
That any Alien being a free white person, who shall have
resided within the limits and under the jurisdiction of the United States for
the term of two years, may be admitted to become a citizen thereof on
application to any common law Court of record in any one of the States wherein
he shall have resided for the term of one year at least, and making proof to
the satisfaction of such Court that he is a person of good character, and
taking the oath or affirmation prescribed by law to support the Constitution of
the United States, which Oath or Affirmation such Court shall administer, and
the Clerk of such Court shall record such Application, and the proceedings
thereon; and thereupon such person shall be considered as a Citizen of the
United States. And the children of such person so naturalized, dwelling
within the United States, being under the age of twenty one years at the time
of such naturalization, shall also be considered as citizens of the United
States.
~~~~~
The 1795 Act made it harder for aliens to become citizens of
the United States, but repeated: “that
the children of persons duly naturalized, dwelling within the United States,
and being under the age of twenty-one years, at the time of such
naturalization. . . shall be considered as citizens of the United
States: Provided, That the right of citizenship shall not descend
to persons, whose fathers have never been resident of the United States.” So, under both Acts parents had to naturalize
in the United States to make their minor children citizens of the United States
and those children had to be dwelling in the United States for the new status to
attach to them. If parents did not
naturalize during their children’s years of minority, their children remained
aliens unless they naturalized on their own during their years of
majority.
As we can see, the Acts’ language was broad and applied to
both children born in or out of the United States. These Acts explained that a child born in the
United States to alien parents could become a citizen of the United States only
if his or her parents naturalized during the child's minority and when the
child shall be dwelling in the United States, and if not done during that time
period, only upon the child-turned adult's own naturalization petition. Hence,
there is no question that when the Framers drafted and adopted the Constitution
and when it was ratified by the states, a child born in the United States to
alien parents was not a natural born citizen. Such a child could become a “citizen” of the
United States, but only after birth and only through naturalization of the
parents if done during the child’s minority or upon the child’s personal
naturalization petition upon reaching the age of majority (which was 21 years
of age).
We have further evidence of the need, not only that the
child be born in the country, but also that the child be born to U.S. citizen
“parents” in order for the child to be a natural born citizen, from our
Congress. The Civil Rights Act of 1868
was passed in that year. It
provided: “All persons born in the
United States, and not subject to any foreign power, excluding Indians not
taxed, are hereby declared to be citizens of the United States.” In 1862,
Representative John Bingham said on the House floor:
The Constitution leaves no room for doubt upon this subject. The words “natural-born citizen of the United
States” occur in it, and the other provision also occurs in it that “Congress
shall have power to pass a uniform system of naturalization.” To naturalize a person is to admit him to
citizenship. Who are “natural-born
citizens” but those born within the Republic?
Those born within the Republic, whether black or white, are citizens by
birth—natural born citizens. There is no
such word as “white” in your Constitution.
Citizenship, therefore, does not depend upon complexion any more than it
depends upon the rights of election or of office. 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.” (emphasis in the original).
John A. Bingham, Cong. Globe, 37th, 2nd Sess., 1639 (1862).
Note that in defining a natural born citizen, at first he
said that “[t[hose born within the Republic . . . are . . . natural born citizens.” Then he said “all other persons born within the Republic, of
parents owing allegiance to no other sovereignty, are natural born
citizens.” So in his second statement he
was more complete in his definition, adding birth to “parents owing allegiance
to no other sovereignty.” The
record does not contain any indication that any member of Congress disagreed
with Bingham’s statements on the House floor regarding the definition of a
natural born citizen.
Then in 1866, Bingham, in the House on March 9, 1866, in
commenting on the Civil Rights Act of 1866, which was the precursor to the
Fourteenth Amendment, and on the meaning of a natural born citizen paraphrased Vattel’s
definition of the clause thus:
[I] find no fault with the introductory clause, which is simply
declaratory of what is written in the Constitution, that 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. . . .
John A. Bingham, Cong. Globe, 39th, 1st Sess., 1291 (1866).
Here he explained that a natural born citizen was a child
born in the United States to parents who did not owe any allegiance to any
foreign power. That was a correct
definition of an Article II natural born citizen and a repeat of what he had
said in 1862. The record does not
contain any indication that any member of Congress disagreed with Bingham’s
statements on the House floor regarding the definition of a natural born
citizen.
Then in 1867, Bingham made another statement, saying:
“Who does not know that every person born within the limits
of the Republic is, in the language of the Constitution, a natural-born
citizen.”
John A. Bingham, Cong. Globe, Cong. Globe, 40th,
2nd Sess., 2212 (1867). He
made this statement with reference to the right to vote and not in reference to
defining a natural born citizen. Here,
Bingham, in defining a natural born citizen, only mentioned birth “within the
limits of the Republic.”
In 1872, Bingham again addressed the meaning of a natural
born citizen. He made more statements on
the floor of the House. On April 25,
1872, he addressed the case of Dr. John Emilio Houard being incarcerated in
Spain for allegedly having committed a criminal offense there. Bingham demanded that the government of Spain
afford Dr. Houard due process of law under Spanish law. During the debate, the issue was raised on
the floor of the House whether the doctor was a citizen of the United States,
for if he was not such a citizen, the United States would have nothing to do
with the matter. Bingham argued:
As to the question of citizenship I am willing to resolve all doubts in
favor of a citizen of the United States. That Dr. Houard is a
natural-born citizen of the United States there is not room for the shadow of a
doubt. He was born of naturalized parents within the jurisdiction of the
United States, and by the express words of the Constitution, as amended to-day,
he is declared to all the world to be a citizen of the United States by birth.”
John A. Bingham, Cong. Globe, 42nd, 2nd
Sess., 2791 (1872).
Bingham said that what made Huard a natural born citizen was
being born in the United States to U.S. citizen parents. So, here, as before, he defined a natural
born citizen as someone born in the United States to U.S. citizen parents. Again, the record does not contain any
indication that any member of Congress disagreed with Bingham’s statements on
the House floor regarding the definition of a natural born citizen.
One can argue that Bingham’s 1867 statement contradicts his
two previous and one subsequent statements, because in that statement he only
refers to birth in the United States and makes no mention of having to be born
to parents who were citizens of the United States. But actually they are not contradictory if we
analyze what Bingham probably meant to say in his 1867 statement and conclude
that it is not what appears on the surface.
We can see in his statement of 1862, that first he only called for birth
in the United States. But then later in
his statement he said that only those born in the United States to parents who
owed no allegiance to any foreign power were natural born citizens. So, when he first mentioned just birth in the
country, he was only saying that it was necessary to be a natural born
citizen. But then later he provided the
full definition of a natural born citizen which included birth in the country
to parents who were its citizens. The
same can be said for what Bingham said in 1867.
In mentioning birth in the country, he was only saying that it was a
necessary condition for being a natural born citizen. We know that he did not mean to say it was
sufficient, because then in 1872, he again explained that a natural born
citizen was a child born in the United States to parents who did not owe any
foreign allegiance to any foreign power.
So, Bingham provides a look into how the House of
Representatives defined a natural born citizen in the 1860’s and 1870’s. Bingham’s statement of 1872 was also made by
him after the Fourteenth Amendment had been passed and still, he included in
the definition of a natural born citizen not only birth in the country, but
also birth to U.S. citizen parents. This
information is valuable because it tells us how Congress was defining a natural
born citizen before the Civil Rights Act of 1866 and the Fourteenth Amendment,
and then shortly thereafter. There is
little doubt that the House defined a natural born citizen as a child born in
the country to parents who were its citizens.
Also, the U.S. Supreme Court in The Slaughterhouse Cases (1873) agreed with Bingham, stating that
a child born in the United States to alien parents was not a citizen of the
United States under the Fourteenth Amendment.
Hence, a natural born citizen could be only a person born in the United
States to U.S. citizen parents, which is what Bingham has said as early as
1862.
The Fourteenth Amendment was ratified in 1868 and replaced the
Civil Rights Act. The Amendment was passed to provide through the Constitution and not only through an Act of Congress for the citizenship of recently freed slaves and to protect their civil rights. It provided: “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.” The Fourteenth Amendment should not be read any further than providing for the remedy of making all persons born in the United States while subject to its jurisdiction "citizens" of the United States, not Article II "natural born citizens" of the United States. A plain and simple reading
of its text shows that it only defines a “citizen” of the United States, not an
Article II “natural born Citizen” of the United States. As far as the debates on the Fourteenth
Amendment go, we have to understand the first principle which is that that the
text of that Amendment concerns a “citizen” of the United States, and not a
“natural born citizen” of the United States.
Plainly on its face and except for those born before the adoption of the
Constitution, Article II, Section 1, Clause 5 informs that being a citizen of
the United States is not sufficient to be eligible to be President. Rather, it demands that one be a natural born
citizen. Those who rely on the comments
made in debate during the adoption of the Amendment fail to demonstrate with
those comments by members of Congress that they were defining an Article II
natural born citizen as opposed to who was to be a citizen of the United States
under the Fourteenth Amendment. After
all, the issue before them was who was to be a citizen under that Amendment,
not who was to be an Article II natural born citizen.
Additionally, what those debate comments show is that those
commentators all agreed that to be a natural born citizen and eligible to be
President, it was necessary that one had to be a “native-born citizen,” meaning
one was born in the United States and a citizen. So birth in the United States was a
necessary condition of being a natural born citizen and eligible to be
President. There is nothing in those
statements to indicate that they were saying that birth in the United States
was sufficient to be a natural born citizen and eligible to be President. And to the degree that such a position can be
inferred from what they said, whether they thoroughly studied and considered
whether birth in the United States was sufficient is another story. But in any event, those commentators agreed
that birth in the United States was a necessary condition of being eligible to
be President. That alone shows that
Senator Ted Cruz, born in Canada, is not eligible to be President.
As we saw from Wong Kim Ark, the Fourteenth Amendment
abrogated Congress’s naturalization Acts that applied to children born in the
United States and any conflicting treaties.
Wong Kim Ark informed that birth in the country while subject to its
jurisdiction, when it is through birth in the United States to one or two alien
parents, is strong enough to produce U.S. citizenship at birth and only by
virtue of the Fourteenth Amendment (under English common law called a “natural-born
subject”). But such birth circumstances are not strong enough to
produce a natural born citizen under American common law (not to be conflated, confounded,
and confused with an English “natural-born subject” under the English common
law). That a person born in the United
States to one or two alien parents satisfies the material elements of the
Amendment does not make the very Amendment, the source of the citizenship,
disappear. It is still by virtue of the Amendment itself, and not by virtue of
birth alone, which is the case for a natural born citizen, that one becomes a
citizen of the United States at birth.
Rubio was born in the United States to alien parents (they were both citizens of Cuba when Rubio was born). If born after Congress passed its first
naturalization Acts and before the ratification of the Fourteenth Amendment, at
best, he could have naturalized under a naturalization Act of Congress to
become a citizen of the United States after his birth, either by his parents
naturalizing during his minority or upon his own personal naturalization as an
adult. Having to naturalize by either
method in order to become at best a citizen of the United States after his
birth, he surely could not be a natural born citizen.
Rubio was born in 1971 and therefore gets the benefit of the
Fourteenth Amendment. But the Fourteenth
Amendment also does not make Rubio a natural born citizen. Only by virtue of the Fourteenth Amendment,
which was passed so that freed slaves could become citizens of the United
States, which abrogated Congress's naturalization Acts as they applied to
persons born in the United States, which came 81 years after the adoption of
the Constitution, which did not repeal the natural born citizen clause nor
amend it, and which only grants entry-level membership in the United States to
children born in the United States to aliens who are domiciled and permanently residing
in the United States and neither foreign diplomats nor military invaders, hence,
children born in the United States while subject to its jurisdiction, Rubio
became a "citizen" of the United States "at birth," but not
a natural born citizen. Rubio, only by
virtue of the Fourteenth Amendment (a positive law), became a citizen of the
United States before both of his birth parents did. It is not possible that he is a natural born
citizen, who, by reason of his or her birth circumstances, i.e., birth in the
country to parents who were its citizens, needs no law to be a natural born
citizen.
So, Trump should do more than just retweet that he is not
sure whether Rubio is a natural born citizen.
Trump should forcefully expose Rubio for not being one, as he has done
with Ted Cruz.
Finally, South Carolina Governor, Nikki Haley, recently endorsed Marco
Rubio. But the endorsement by one who like Haley, born in the United States to
alien parents like Rubio, who is like Rubio not a natural born citizen, does
not nor can it convert Rubio into a natural born citizen.
Mario Apuzzo, Esq.
February 22, 2016
http://puzo1.blogspot.com
####
Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved
February 22, 2016
http://puzo1.blogspot.com
####
Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved
