States Should Enforce “Natural Born Citizen” Requirement

The Constitution requires the president to be a “natural born citizen”. The purpose of this post is not to re-hash the arguments about what “natural born citizen” means, but to outline a process that can generate a legal standard for how it is enforced that would be consistent with the original intent of the Framers. The States are key to this process.

This proposal is to have one or more states enforce via legislation the implementation of the requirement in their state, according to their understanding of the requirement. If a candidate or political party sues the state, the Supreme Court will review the law and decide whether the details of the law are constitutional, according to the original intent of the framers. By this means, we can produce a general standard for the requirement that all states could adopt.

Related posts: Natural Born Citizenship

Simply stated, I believe the Framers intended for both parents to be 100% American at birth and the child should be born in the US. There are some additional details to be addressed for certain situations, but that is the basic idea. For over 200 years there was no controversy about this requirement. The controversy arose only in recent years when persons with very questionable qualifications began to become candidates.

Related: Revisiting the POPE option

However, legally, it does not matter what I believe or what any other non-expert, non-authority believes. I would like to see the states and courts work out what enforcement should be, according to the Constitution and the original intent. Let them do their duty and commit what they decide to law. That would start the process.

Today, there is a large constituency of people who corrupt the original meaning of the term, because they want to promote the internationalization of America or for whatever ideological or financial reason. Then, most of the population has not researched the issue and is just not well informed about the original meaning of the term. Many of them have been influenced by the media, which generally supports the abrogation of the constitutional requirement via manipulation of public opinion rather than using the legal system.

The term comes from the philosophy of natural law, on which our Constitution is based. To understand the meaning of the term and the Framers’ original intent, one should look at how it was used in the literature about natural law.

Article II, Section 1 (excerpt)

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

There are several ways that a legal definition of the term could be obtained.

  • The clearest and most straightforward way would be to amend the Constitution to better define the term, but at this time it is unlikely to pass Congress.

  • Congress could also pass a law outlining the requirements placed on candidates, but this is also highly unlikely at present for political reasons.

  • The Supreme Court could rule on requirements are for candidates. However, all attempts so far have been rejected by the courts, generally due to the plaintiff not having legal “standing”.

  • Finally, the States could enact a law requiring candidates to meet their natural-born citizenship requirements to be listed on the state ballot. (See the first reference listed at the bottom by Mario Apuzzo.)

The states enact many laws that determine how different aspects of the Constitution are implemented in their states. For one example, just consider the many gun control laws that have been made by states that delineate the limits of the Second Amendment. The “right to bear arms” is also not defined in the Constitution. Nevertheless, all the states pass numerous laws that constrain your right to bear arms. The courts review these laws for constitutionality. So, why should not the states do the same with the natural-born-citizen qualification for the presidency, delineating the exact qualifications with respect to the Constitution?

With states, we have 50 chances of passing a law that outlines the Framers’ original intent and requires candidates to comply. We don’t have to depend on a politically disinterested Congress alone. This would likely be very controversial and states may enact different versions of how the requirement will be implemented. However, this would just cause it to go quickly to the Supreme Court for adjudication. Then presumably there would then be no question of “standing” if a candidate or political party were to file such a lawsuit. So, this could be a means of obtaining a ruling on a more precise meaning of the term. It should be according to original intent, but also in the modern context of citizenship laws.

Such a procedure would also bypass the personal characteristics of any one candidate. When conservative activists pointed to Obama’s lack of constitutional qualification to be president, they were immediately accused of “racism”. That was a tremendous distraction, but would not be a problem if states pass a general law. The state law would be subject to review by the courts, rather than trying to have a specific candidate disqualified. The focus should be on developing a clear legal standard, which applies equally to every would-be candidate.

Related Posts:
Nikki Haley is NOT A Natural Born Citizen
What is the Definition of “Natural Born Citizen”?

Other References:
The States Have the Constitutional Power to Pass Legislation Prescribing Presidential Ballot Access Requirements Including Determining Whether a Candidate Meets the Eligibility Requirements of Article II, Section 1, Clause 5 by Mario Apuzzo
The Who, What, When, Where, Why, and How of the “natural born Citizen” Term In Our United States Constitution by CDR Charles F. Kerchner, Jr. (Retired)

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31 thoughts on “States Should Enforce “Natural Born Citizen” Requirement”

    1. Doesn’t seem relevant, reading just the summary. Ordinary citizenship is not the issue. Natural born citizenship is a technical term used in the philosophy of natural law, upon which the Constitution was based. It is not the same as ordinary citizenship. In any case, the point of this post is not to argue without end what a NBC is, but how to create a legal standard that delineates the specific requirements. It seems the states could help in creating this legal standard. I like having comments, but would hope they would be to point and not just a distraction.

  1. I really don’t want to get in the weeds and thrash around in an endless discussion what the eligibility requirements are or should be with other non-legal-experts, like myself, but promote a process to obtain state legal requirements based on the NBC clause.

    If the only requirement is really just to be born in the US then a state should codify that, though I don’t think that is true. Let the states and Supreme Court decide if that’s Constitutional or not. I think it should be what the Framers intended and that is to me that is clearly NOT what they intended when they required the President to be a NBC.

    For 220 years, every president — excepting the revolutionaries — was born in the US of two American (only) parents. Can it be that we only discovered they didn’t understand the requirement until 2008 when Obama ran for the presidency? Or, did many Americans just become PC in 2008?

    1. Chester Arthur did not have U.S. citizen parents at the time of his birth. Neither did various other unsuccessful presidential candidates.

    2. About Chester Arthur, not clear to me that he was actually born in Canada or if this came up at the time. In any case, if there was one failure in enforcing the Constitutional requirement, it doesn’t mean that everyone can do it from now on. It just means we need a better system for making sure presidential candidates are qualified to run, which is the purpose of this post, how to go about that?

  2. No they can’t. The definition the founding father’s based the requirement “natural born citizen” means at the time a child is born, his/her father must be a citizen of the United States. Children inherent their fathers citizenship.

    During the time the Constitution was written and ratified the father was the head of the household. Congress has been trying to change the definition since before Bush.

    The attachment is the legal dictionary used at the time for legal definitions. And a page from it, at the top of the page defining the different types of citizenship.

    Obama, Rubio, Cruz and there are others that do not hold Constitutional “natural born citizenship”. It’s not because of where they were born It’s because, Obama’s father was never a citizen, Rubio’s fathers didn’t apply for citizenship until years after he was born and Rubio was then grandfathered into his his father’s US naturalization, Cruz father did not apply for citizenship until Cruz decided to run for the presidency.

    None of the bills congress has attempted to pass changing the definition of “natural born citizen” have ever passed. Congress has never gone through the amendment process to change the requirements of Article II, Section 1, paragraph 5, of The Bill of Rights of the Constitution. If the house of representatives doesn’t go to the SCOTUS if necessary, we could be looking at Xi Jinping as our president in 2024.

    1. You are missing the point. It’s not about us non-experts determining whether someone is a natural born citizen or not, it’s about starting a process so that the states and court system and maybe Congress develop legal requirements according to original intent to demonstrate who is a natural born citizen for the purpose of qualifying for the presidency.

  3. Some courts already have defined the meaning of natural-born citizen.

    Various courts, for example, already ruled President Obama was a natural-born citizen because he was born in the United States.

    Other courts already ruled Cruz is a natural-born citizen because he was a U.S. citizen at the time of his birth.

      1. It looks like the spam filter doesn’t like links.

        Indiana state court ruled President Obama is a natural-born citizen in Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. Ct. App. 2009).

        Pennsylvania state court ruled Cruz is a natural-born citizen in Elliot v. Cruz, No. 77 M.D. 2016 (Penn., Mar. 10, 2016).

        Any search engine should be able to locate the courts’ rulings.

        So the system works.

  4. My whole point is that the there is no general standard for how the requirement should be implemented. My proposal is for states to create their own general law.

    Also, that it is quite useless for non-experts to argue endlessly about this topic on the Internet. I don’t want to spend the rest of my life arguing with Internet users. I just want to make the suggestion that the states start legislating a general standard that can pass inspection by the Supreme court if it is possible to do that. It seems to me that it should be possible for states to do this.

    These cases that you mention are from state courts and my guess is do not set a precedent in other states. Other states may see it differently. Neither has it been tested in the Supreme Court. Even if a state court has ruled, that doesn’t mean that the state can’t afterwards pass a law that supersedes the court ruling.

    These two cases are for specific situations and do not create a general standard for who should be qualified to be President that can be applied in every state.

    Ankeny v. Governor of State of Indiana

    Carmon ELLIOTT, Petitioner v. Ted CRUZ, Respondent.

    I am about to go on a trip, so I don’t have time to read about these two cases, closely. But my point is I shouldn’t have to. Legislatures and the courts should do the work, not me and you. Nothing is going to be resolved in this issue on the Internet. We can inform people, though, and motivate them to push their state legislators to act.

  5. My idea does not depend on that. I am not trying to dictate any specific result. I’m not an constitutional attorney and I assume you are not an attorney. However, I believe Wong Kim Ark found only that he was a “citizen” by the 14th Amendment and and not a “natural born citizen” eligible to become president as the Framers intended. But my purpose is not to provide a forum where a bunch of unknowledgeable people debate something that they are not qualified to talk about with authority, but to promote the idea that one or more states should take up the question and make a law, according to however they understand the requirements. If say a progressive state believes that Putin could have one of his whores give birth in the US, stay for only a week, raise the baby in the Kremlin in Russia and then later help him become US president under the 14th Amendment, then God bless ’em. Hope they make a law to that effect and the Supreme court will review it. The States have the resources and expertise to do something about it, whereas you and I don’t. Thanks for your irrelevant comment, though. 🙂

  6. At the time of the ratification of the 14th amendment, the 1866 Congressional Record, on page 2890, the senator from Michigan Jacob stated babies born here of ambassadors, business men and aliens are NOT citizens.

    1. I looked to see if I can find it. This Government Publishing Office (GPO) website says the Congressional record first started in 1873. So, I think any page from 1866 must be fake. I wouldn’t matter even if it did exist, because the Supreme Court ruled on this.

      GPO Completes Digitization of the Historical Congressional Record

      WASHINGTON – In cooperation with the Library of Congress, the U.S. Government Publishing Office (GPO) has completed the digitization of all historical issues of the Congressional Record dating to the first appearance of this publication on March 5, 1873. The final release of this project, covering the period 1873-1890, is being made available to the public free of charge on GPO’s govinfo

  7. So at 8:30, he says a congressman testifies that the 14th amendment was not intended to give citizenship to everyone born in the US, there may be a record of the testimony, but you just misspoke and said that it was in the Congressional Record, which apparently didn’t exist at that time.

    1. Senator Jacob Howard authored the first clause (citizenship clause) of the 14th.

      “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

      Immediately after he introduced his clause, Senator Cowan objected because it made citizens of children born in the US to Chinese alien parents. While Senator Conness approved of the clause because of the same reason.

      1. I am not sure how to take that statement. Of course, his statement is not law, either, though it may show intent. But I don’t think a law can create a natural-born citizen, even an amendment. It seems absurd to think that two illegal aliens, who are citizens of another country could create a natural-born citizen, eligible to be president, without the parents having any intention of ever becoming an American citizen. The same with parents who are here on a temporary visa. In any case, the idea is to let the states and the courts hash this out, hopefully, according to the original intent of the Founders.

  8. Roger, if you text me I’ll send you a photo of Congressional Record (previously called the “Congressional Globe” in 1866 but holds the same function) page 2890. Douglas Gibbs has my phone number.

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