Paul R. Hollrah
September 6, 2011
On June 4, 2011 I published an analysis of Barack Obama’s eligibility to serve as President of the United States. The analysis, titled “The Obama Eligibility Question,” provided convincing proof that he is not a “natural born” citizen as required by Article II, Section 1 of the U.S. Constitution.
Now, just months later, many conservatives who are convinced of Obama’s ineligibility are getting their shorts in a knot over the possibility of having Florida Senator Marco Rubio as the 2012 Republican nominee for vice president. Unquestionably, Rubio would be an exceptional choice and an exceptional president or vice president. But if we are convinced that Obama is ineligible to serve because he fails to meet the “natural born” standard, then we must also apply that same standard to Marco Rubio. We cannot have it both ways.
As conservatives and as Republicans, we differ from liberals and Democrats in that we actually hold ourselves to constitutional principles and the rule of law.
First, let us compare Rubio’s eligibility to that of Arnold Schwarzenegger, who expressed an interest in running for president shortly after he became Governor of California. What do Rubio and Schwarzenegger have in common? The one thing they have in common is that both were born to parents, both of whom were citizens of a foreign country at the time of their birth.
The primary difference between the two is that Schwarzenegger was born in Austria to Austrian parents, while Rubio was born in the United States to parents who were Cuban citizens. Hence, those who assert that Rubio is eligible to serve, while Schwarzenegger is not, are forced to rely solely on the fact that Rubio was born on U.S. soil. This leads to the irrational conclusion that to be born on American soil is to be “native born,” and that to be “native born” is equivalent to being “natural born.” It is not. To insist that Rubio is a “natural born” citizen because he is “native born” is to say that the nationality and citizenship of one’s parents is of no significance.
So if place of birth is paramount, as claimed by supporters of Rubio and Obama, what of men such as Governor George W. Romney (R-MI), who sought the Republican nomination in 1968, and Senator John McCain, who was the Republican nominee in 2008? Romney was born in Chihuahua State, Mexico, to parents who were both U.S. citizens, while McCain was born in the Panama Canal Zone to parents, both of whom were U.S. citizens.
When McCain’s eligibility was questioned by Republicans in early 2008, former U.S. Solicitor General Theodore Olson, a conservative Republican, and Harvard Law professor Laurence H. Tribe, a liberal Democrat, were jointly assigned the task of researching the issue of McCain’s eligibility. In a March 19, 2008 memorandum, Olson and Tribe concluded that, “based on original meaning of the Constitution, the Framers’ intentions, and subsequent legal and historical precedent, Sen. McCain’s birth, to parents who were U.S. citizens serving on a U.S. military base in the Panama Canal Zone in 1936, makes him a ‘natural born Citizen’ within the meaning of the Constitution.”
Both Romney and McCain, in spite of being born on foreign soil, were found to be “natural born” citizens because, in each instance, both parents were American citizens.
(NOTE: Although Obama’s eligibility was seriously in doubt, no one in Democratic circles questioned his qualifications. This in spite of the fact that, after he had won the Democratic nomination, officers of the Democratic National Convention provided certification to only one state, the State of Hawaii, declaring that, “… the following candidates for President and Vice President of the United States are legally qualified to serve under the provisions of the United States Constitution.” That language was purposely deleted from certifications sent to the other forty-nine states. The only conclusion one can reach is that the Democrats knew when they nominated him that Obama was ineligible to serve. They failed to properly vet him because they lacked the courage to explain to black constituents that the first and only black man ever to have a serious shot at the presidency was, in fact, a usurper.)
So if the place of one’s birth is of no consequence, as in the case of Romney and McCain, and if the nationality of one’s parents is of no consequence, as in the case of Rubio and Obama, we are then left with the absurd proposition that anyone… male or female, born anywhere on the face of the Earth… is eligible to serve as President of the United States, so long as they are 35 years of age and have resided in the United States for at least 14 years.
That simply cannot be the case. It leads us directly back to the conclusion that the term “natural born” means something far more than merely being born on American soil of mixed or foreign parentage, and far more than being born on U.S. soil with dual U.S. and foreign citizenship.
In drafting the U.S. Constitution, particularly that section of Article II, Section 1 relating to the qualifications for president and vice president, the Framers relied on the wisdom of a 1758 legal treatise by Swiss philosopher Emerich de Vattel titled, “The Law of Nations.” In Book One, Chapter 19, Section 212 of that treatise, titled, “Of the citizens and natives,” Vattel wrote:
“...The natives, or natural-born citizens, are those born in the country, of parents who are citizens...The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner (e.g. Barack Obama and Marco Rubio), it will be only the place of his birth, and not his country.”
A century later, in 1866, John A. Bingham, the chief Framer of the 14th Amendment… which granted citizenship to the freed slaves… wrote as follows: “Every human being born within the United States of parents not owing allegiance to any foreign sovereignty (emphasis added) is, in the language of the Constitution itself, a natural born citizen.”
Like Vattel, Bingham understood that the term “natural born” applied only to those whose parents were both American citizens and who owed allegiance to no foreign sovereignty. He also understood that the term “natural born” could not apply to those who owed allegiance to a foreign sovereignty through dual citizenship (e.g. Barack Obama, who held dual US-British citizenship from August 4, 1961 through December 11, 1963; dual US-Kenyan citizenship from December 12, 1963 through August 4, 1984; and dual US-Kenyan citizenship from August 4, 2010 to the present).
The presidency of Chester A. Arthur, who became president in 1881 when President James Garfield was assassinated, has also been called into question because his father was a non-citizen, an Irish immigrant, when he was born. His case is not unlike that of Barack Obama, whose father was a Luo tribesman from Nyanza Province, Kenya, at the time of his birth.
However, to allow the unchallenged presidencies of Chester A. Arthur and Barack Obama to set a precedent for future presidencies would be a great disservice, not only to the Founders, but to future generations of Americans, as well. In order to clarify the issue and to prevent a future constitutional crises over presidential eligibility, the Congress should take immediate steps to clarify the issue, establishing by law the definition of “natural born Citizen.” They may wish to define the term as: “an individual born to parents, both of whom were United States citizens, and neither of whom owed allegiance to any foreign sovereignty, at the time of the birth.”
Those who have great expectations for Senator Rubio should not despair; the country has other ways in which to avail itself of his passionate love of country. For example, the Constitution sets no “natural born Citizen” qualification for appointment to the U.S. Supreme Court. Rubio would be an excellent candidate for appointment to the U.S. Supreme Court by a future Republican president.
If appointed at age 50, or before, Rubio could be expected to serve at least three decades on the court. Along with reliable conservatives Roberts, Alito, Scalia, and Thomas, all relatively young men, Rubio could play a far more important role in the history of the United States than he could as a two-term president. As a member of the high court, he could make the lives of liberals Kagan, Sotomayor, and Breyer so miserable that each day on the court would be, for them, an ideological nightmare. But to think of him as our president, the leader of the Free World, is to engage in mere wishful thinking.
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