An offsite Editorial
Why
the “Natural Born Citizen” Clause of Our Constitution Is Important
and Worth Preserving
by: Mario Apuzzo, Esq.
It was the fear of foreign influence invading the Office of Commander in Chief
of the military that prompted John Jay, our first U.S. Supreme Court Chief
Justice, to write to George Washington the following letter dated July 25,
1787: “Permit me to hint, whether it would be wise and seasonable to
provide a strong check to the admission of Foreigners into the administration
of our national Government; and to declare expressly that the Commander in
Chief of the American army shall not be given to nor devolve on, any but a
natural born Citizen (underlying "born" in the original). Jay’s
recommendation did make it into the Constitution. Article II, Sec. 1, cl. 5 of
the Constitution provides in pertinent part: “No person except a natural
born Citizen, or a Citizen of the
That the “natural born Citizen” clause is based on undivided
allegiance and loyalty can be seen from how the Founders distinguished between
"citizen" and "natural born Citizen." This distinction is
based on the law of nations which became part of our national common law.
According to that law as explained by E. Vattel in, _The Law of Nations_ (1758), Vol.1, Section 212, Des Citoyens
et Naturels, a "citizen" is a member of the
civil society. To become a "citizen" is to enter into society as a
member thereof. On the other hand, Vattel wrote that
a native or indigenes (written in French as /les
naturels/ or /indigenes/)
or “natural born Citizen” as the term later became translated from
French into English, is a child born in the country of two citizen parents who
have already entered into and become members of the society. Vattel also tells us that it is the “natural born
Citizen” who will best preserve and perpetuate the society. This
definition of the two distinct terms has been adopted by many United States Supreme
Court decisions. (The Venus, 12 U.S. 253 (1814) and Minor v. Happersett, 88 U.S. 162 (1874) to cite just two.) With the
presidential qualification question never being involved, neither the 14th
Amendment (which covers only "citizens" who are permitted to gain
membership in and enter American society by either birth on U.S. soil or by
naturalization and being subject to the jurisdiction of the United States), nor
Congressional Acts (8 U.S.C. Sec. 1401), nor any case law (e.g. U.S. v. Wong
Kim Ark, 169 U.S. 649 (1898)) has ever changed the original common law
definition of a “natural born Citizen.” This amendment and laws
have all dealt with the sole question of whether a particular person was going
to be allowed to enter into and be a member of American society and thereby be
declared a "citizen." The 14th Amendment did not involve Article II,
let alone define what a “natural born Citizen” is. Never having
been changed, the original constitutional meaning of a "natural born Citizen"
prevails today. We can also see from these definitions that a
“citizen” could have more than one allegiance and loyalty
(acquiring allegiance from one’s foreign parents or from foreign soil)
but a “natural born Citizen” can have only one and that is to
America (soil and parents are all united in one nation).
The original definition of "natural born Citizen" gives our
Constitutional Republic the best chance of having a President and Commander in
Chief of the Military who has sole and absolute allegiance, loyalty, and
attachment to the United States. By satisfying all conditions of this
definition, all other avenues of acquiring other foreign citizenships and
allegiances (jus soli or by the soil and jus sanguinis or by descent) are cut
off. Having all other means of acquiring other foreign citizenships or
allegiances cut off is unity of citizenship which is what the President must
have at the time of birth. Additionally, by requiring the child’s parents
to be U.S. citizens best assures that those parents most likely will have absorbed
American customs and values which, in turn, they will transmit to their child.
The “natural born Citizen” clause serves a critical purpose today
and must be enforced in every Presidential election. The President has immense
power, both civil and military. The clause assures the American people that
their President does not have any conflicting allegiances or loyalties. In our
nuclear world, it will avoid having a President who may hesitate to act quickly
and decisively in a moment of crisis due to some internal psychological
conflict of allegiance or loyalty. It will avoid any foreign nation expecting
and pressuring the President to act in their best interest instead of that of
America. The clause gives the American people the best chance that they will
not be attacked from within through the Office of President. Knowing the
President is a “natural born Citizen,” the American people will
trust their President with their lives. Finally, such a President can expect
that the military will give him or her full trust and obedience.
When President Obama was born in 1961, under the British Nationality Act 1948,
both his father and he were British subjects/citizens. In 1963, they both
became Kenyan citizens. In fact, Mr. Obama’s father was never even a
legal resident or immigrant of America. Hence, regardless of where Mr. Obama
was born or that he may be a United States citizen under the 14th Amendment, he
is not an Article II “natural born Citizen” and not eligible to be
President. This ineligibility has absolutely nothing to do with his race or
class but all to do with his being born with multiple citizenships and
allegiances and not satisfying the strict eligibility requirements of Article
II. If someone believes that today the “natural born Citizen”
clause no longer serves any useful purpose, then the proper way to change or
abandon it is by way of constitutional amendment under Article V of the
Constitution, not by usurpation.