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.
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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, 2ndSess., 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
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Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved
February 22, 2016
http://puzo1.blogspot.com
####
Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved
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