The Constitution requires the president to be a “natural born citizen”. However, the term is not defined in the Constitution. Neither has a law or court ruling been made more exactly delineating the constraints of the term. The purpose of this post is not to re-hash the arguments about what “natural born citizen” means, but to outline a process that generates a legal standard for how it is enforced. 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.
Simply stated, I believe the Framers intended for both parents to be 100% American and the child should be born in the US, though some additional details should be considered. 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.
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.
Nikki Haley is NOT A Natural Born Citizen
What is the Definition of “Natural Born Citizen”?
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)