Is Marco Rubio a Natural Born Citizen?


Now that President Obama has been reelected, likely 2016 candidates are emerging, especially Marco Rubio, and undoubtedly the birther movement will question is Marco Rubio a natural born citizen? Is Marco Rubio eligible to be president? The alternative media started raising doubts when speculation began about Marco Rubio as a potential presidential candidate or VP running mate in 2012, and for sure birther speculation will increase as Marco Rubio is in the limelight as a likely 2016 presidential candidate.

Birthers will also likely ask the same questions about another potential presidential contender, Bobby Jindal, whose parents weren’t U.S. citizens or permanent residents when Jindal was born.

Sadly, one likely reason Marco Rubio was passed over as Mitt Romney’s vice-presidential pick was the likelihood that Marco Rubio would have been constantly dogged by birthers. In my opinion, Rubio would have helped Mitt Romney immensely with Latino voters once they got to know him better, and low support among Latino voters likely cost Mitt Romney the election, along with his unfortunate self-deportation comment.

No amount of hard evidence can sway conspiracy theorists. If you disagree with them or confront them with hard evidence to disprove their theory, the immediately accuse you propagating disinformation as part of the conspiracy, almost a ‘no win’ proposition.

Anonymous e-mails from Hillary Clinton’s campaign during the Democratic primaries, igniting the birther movement when conspiracy theorists picked up on the issue. Most prominent among birthers is author Jerome Corsi, who makes a living creating conspiracy theories to sell books. Who can ever forget the North American Union conspiracy, which claimed President Bush would merge the U.S., Canada, and Mexico without the approval of Congress? Corsi even claimed there was a new currency, the Amero, but just try to find one. You can buy Corsi’s book “The Late Great USA: NAFTA, the North American Union, and the Threat of a Coming Merger with Mexico and Canada” for a penny from Amazon.com. Corsi’s North American Union is so lacking in facts and ridiculous that Corsi shouldn’t be taken seriously, but he continues to be a popular author. The more outrageous his conspiracy theories, the more books he sells!

Is Marco Rubio a natural born citizen?

Marco Rubio is undoubtedly a natural born citizen. So is Bobby Jindal, and so is John McCain, though John McCain was born on a U.S. military base in Panama. All three were U.S. citizens at birth and therefore are natural born citizens.

At the time our constitution was adopted, citizenship was determined by English Common Law. Birthright citizenship was part of English Common Law, except for children born of slaves, who were considered slaves rather than subjects.

Opponents of birthright citizenship claim the framers of our constitution and authors of the 14th amendment meant something entirely different than what our courts have consistently ruled for over 100 years. The plain language of the 14th amendment is crystal clear, which explains why no court has sided with birthright citizenship opponents. Section 1 of the 14th amendment states:

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.

Opponents deliberately confuse “allegiance” with “jurisdiction”, claiming that children born of unauthorized immigrants owe allegiance to their parents’ home nation, not to the U.S., and therefore are not subject to the jurisdiction of the United States. Black’s law dictionary defines jurisdiction as:

The power and authority constitutionally conferred upon (or constitutionally recognized as existing in) a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favor of or against persons (or a res) who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient.

In layman’s terms, if a court or government can hold you accountable under laws, then you are subject to its jurisdiction. Applying common sense, virtually everyone present in the U.S., regardless of any allegiance to any foreign government, is subject to U.S. jurisdiction. If a non-citizen throws a gum wrapper on the sidewalk in violation of anti-littering laws, they can be given a ticket or arrested. That’s jurisdiction! If children born of non-citizens were not “subject to the jurisdiction thereof” then they would be immune to U.S. courts, could not be sued, fined, deported, etc. The legal status of their parents is irrelevant.

The only exception to birthright citizenship are children born on U.S. soil to foreign leaders, diplomats and their families, who have diplomatic immunity under treaty and international law, and cannot be arrested or sued in U.S. courts, and therefore are not subject to U.S. jurisdiction. If a U.S. born child of a diplomat throws a gum wrapper on the sidewalk in front of a cop and the cop tries to ticket him for littering, they can claim diplomatic immunity under international law and U.S. courts cannot fine him for littering.

Another frequent argument against birthright citizenship is that the 14th amendment was merely intended to ensure that newly freed slaves would be considered citizens and not to grant citizenship to children born of unauthorized immigrants. Its true the purpose of the 14th amendment was to address citizenship of slaves. Under English Common Law at the time the U.S. became a nation, children born of slaves were not considered subjects or citizens, and the 14th amendment was needed to reverse the infamous Dredd Scott decision in which the U.S. Supreme Court ruled that blacks could never become citizens.

The doctrine of 1776, that all (white) men “are created free and equal,” is universally accepted and made the basis of all our institutions, State and National, and the relations of citizenship–the rights of the individual–in short, the status of the dominant race, is thus defined and fixed for ever.

But there have been doubts and uncertainties in regard to the negro. Indeed, many (perhaps most ) American communities have latterly sought to include him in the ranks of citizenship, and force upon him the status of the superior race.

This confusion is now at an end, and the Supreme Court, in the Dred Scott decision, has defined the relations, and fixed the status of the subordinate race forever–for that decision is in accord with the natural relations of the races, and therefore can never perish. It is based on historical and existing facts, which are indisputable, and it is a necessary, indeed unavoidable inference, from these facts.

There is little doubt the purpose of the 14th amendment was to overturn Dredd Scott v. Stanford and ensure that Southern states respected newly freed slaves as citizens. However, transcripts of the Congressional debate showed that the status of children born of immigrants was vigorously debated. Some members of Congress wanted to exclude children born of Chinese immigrants, but when the vote was taken the 14th amendment passed.

Transcripts of debates in state legislatures that ratified the 14th amendment would no doubt show that citizenship of children born of immigrants was also considered. There is no grand historic misunderstanding! Congress did not intend to exclude the children born of immigrants from birthright citizenship. and a plain reading of the 14th amendment is crystal clear.

Prior to the 14th amendment, English Common law provided for birthright citizenship except for slaves. Upon independence, states passed reception statutes to implement and continue English common law except where it conflicted with state constitutions.

So just what did English Common law say about birthright citizenship when the constitution was adopted? The most authoritative text “An Analysis of the Laws of England” by William Blackstone, first published in 1765, and reprinted in 1770, 1773, 1774, 1775, 1778 and 1783. An updated version of Blackstone’s authoritative text was published by Henry John Stephen in 1841, and reprinted until after the Second World War.

Blackstone defined “natural born subjects” as those born within the dominions of England. In a monarchy, citizens are called “subjects” while in a Republic, “subjects” are called “citizens.” Americans stopped calling themselves “subjects” and began calling themselves “citizens”, consistent with the change in form of government from monarchy to republic. The most authoritative source on English Common law for over a century was William Blackstone. From William Blackstone (1765), Commentaries 1:354, 357–58, 361–62

The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.

Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due…

The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. 

Since Obama’s election, another dimension to the birthright citizenship debate emerged, claiming that one is not a “natural born citizen” unless both parents were citizens.  Article Two of our constitution requires that our president be a “natural born citizen” but does not define that term:

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

A 2011 report prepared by the Congressional Research Office concludes:

The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.

This conclusion is entirely consistent with Blackstone’s commentary on English common law:

The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.

Blackstone also notes that children born abroad of diplomats are still considered natural born subjects:

Yet the children of the king’s embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the embassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

As per Blackstone’s commentary, Americans such as John McCain, who was born of American citizen parents on a U.S. military base in Panama, who would have been considered a natural born subject of England under English common law. McCain was born in Panama on a U.S. military base, and thus subject to U.S. jurisdiction when he was born.

Ditto for Marco Rubio, whose parents were permanent residents of the U.S. when he was born. No doubt birthers will seek to delegitimize Marco Rubio’s citizenship by claiming one or both parents weren’t here legally, but it’s clear the legal status of one’s parents isn’t relevant to the child’s legal status. Ditto for Bobby Jindal, whose parents were not yet permanent residents when Bobby Jindal was born.

The  Congressional Research Service also notes:

The term “natural born” citizen is not defined in the Constitution, and there is no discussion of the  term evident in the notes of the Federal Convention of 1787. The use of the phrase in the Constitution may have derived from a suggestion in a letter from John Jay to George Washington during the Convention expressing concern about having the office of Commander-in-Chief “devolve on, any but a natural born Citizen,” as there were fears at that time about wealthy European aristocracy or royalty coming to America, gaining citizenship, and then buying and scheming their way to the presidency without long-standing loyalty to the nation. At the time of  independence, and at the time of the framing of the Constitution, the term “natural born” with respect to citizenship was in use for many years in the American colonies, and then in the states, from British common law and legal usage. Under the common law principle of jus soli (law of the soil), persons born on English soil, even of two alien parents, were “natural born” subjects and, as noted by the Supreme Court, this “same rule” was applicable in the American colonies and “in the United States afterwards, and continued to prevail under the Constitution …” with respect to citizens. In textual constitutional analysis, it is understood that terms used but not defined in the document must, as explained by the Supreme Court, “be read in light of British common law” since the Constitution is “framed in the language of the English common law.”

So why on Earth are some groups trying to rewrite hundreds of years of history and legal precedent? Clearly the birther movement is behind the effort to redefine ‘natural born citizen’ to de-legitimize President Obama, who clearly is a natural born citizen. There’s also a subliminal message that Obama ‘is not one of us.’

Clearly there are also those who do not like Marco Rubio because he is Hispanic and the son of immigrants. By raising the issue of ‘natural born citizens’ some hope to derail any chance that Marco Rubio might become a presidential candidate.

With regards to immigration, there is clearly an effort afoot to generate hostility to groups that are perceived either as immigrants or recent offspring of immigrants. It’s also become acceptable in many quarters to hate unauthorized immigrants, blaming them for a range of social problems. By making an issue of birthright citizenship, now it becomes OK to also hate citizens who are perceived as benefiting from birthright citizenship. Most Hispanics are either immigrants themselves, or 1-2 generations removed, and sadly many Americans view all Hispanics as either unauthorized immigrants or ‘fake citizens’ who are citizens due to ‘misinterpretation’ of that pesky 14th amendment.

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by Bob Quasius, founder and president of Cafe Con Leche Republicans
Original link


Comments

  1. Subjects and citizens are two different things. The understand by the constitutional authors at that time was that a citizen was inadequate for U.S. security and changed the Constitution to read “natural born citizen”. Children born on U.S. soil and of citizen parents, as specified by deVattel in his _Law of Nations_ compilation, can not hold foreign citizenship and are thus clear of foreign influence.

    Put Jindal or Rubio on a GOP ticket and I GUARANTEE you’ll split the ticket and lose yet another election.

    DON’T DO IT!!

    • Cafe Con Leche says:

      Author John Woodman addresses this topic in his blog posting Vattel and “Natural Born Citizen”

      Some highlights:

      According to a new wave of commentators on the US Constitution — such as “birther” lawyer Mario Apuzzo — the Founding Fathers, when writing that the President was required to be a “natural born citizen,” did not rely on our own English heritage and existing English-language terminology for the concept and definition of that phrase.

      The First Problem: Neither Vattel Nor His Translators Had Ever Used the Phrase “Natural Born Citizen.”

      The first difficulty is that Vattel’s phrase that Apuzzo and others quote (“les naturels, ou indigènes” ) wasn’t actually translated into English using the phrase “natural born citizens” until 10 years after the Constitution’s Presidential eligibility clause was written.

      A Centuries-Established Term With a Centuries-Established Meaning — Well Known in Law

      A second issue is that this exact phrase was a standard term in the English common law, which was very well known to most if not all of the Framers of the Constitution. And the phrase had always, literally for centuries, included all children born on the soil of the country.

      Even those with two alien parents. [see my comments on Blackstone’s commentary on English common law. Our entire legal system at the time was framed in English common law]

      A Lack of Any Known Quote Ever Attributing the Concept to Vattel

      The third problem is that nobody has ever produced any quote, from any significant figure in history, that actually says that the Founding Fathers or Framers of the Constitution relied on Vattel for their definition of “natural born citizen.”

      Not once.

      So if Vattel’s phrase had never been translated “natural born citizens,” and if “natural born” was a well-known, long-standing term that had been used for centuries to describe subjects of England — not just in England itself but also in the American colonies — and if we have no record whatsoever that actually says that any Founding Father or Framer of the Constitution ever relied on Vattel for the meaning of the term… one begins to wonder why exactly it’s claimed that the meaning came from Vattel?
      No Debate At All Implies an Understood, Unambiguous Term.

      The fourth problem is that there was no debate at all on the term.

      If the Framers of the Constitution had intended the use of this term — with its well-known, established meaning — in any different sense than the one which it had always held (or in other words, if they had intended to mean Monsieur Vattel’s concept), then undoubtedly there would have been some debate as to exactly what the phrase was being used to mean. And undoubtedly there would have been some clarification as well.

    • Cafe Con Leche says:

      Americans were known as subjects under the monarchy before independence, and citizens afterwards under the republic.

      English common law, essentially a body of prevailing practices and case law, was the law of the land before and after our constitution was adopted. The first act of legislative bodies was enabling statutes adapting English common law except where it conflicted with newly passed constitutions (i.e. obviously King George III was no longer head of state as he was under English common law). English common law at the time was that born under jurisdiction of the state meant you were a natural born subject, unless your parents were diplomats or you were a slave.

      Neither our constitution nor statutes changed definitions of citizens until much later when the 14th amendment was passed. As discussed in my blog, the 14th amendment was intended to overturn the infamous Dredd Scott relegating African-Americans to inferior non-citizen status permanently, and to ensure Southern states respected the rights of newly freed slaves.

      Bottom line: if one is born a citizen, one is a natural born citizen.

  2. You guys aren’t listening. Millions of people don’t agree with you. Put Rubio or Jindal on a presidential ticket and you split the vote down the middle. We will LOSE again! DON’T DO THAT!

  3. RussellPearceWatch says:

    Why will we lose again? Because millions of Republicans are flat out anti-color xenophobes? Sad, but true. States’ rights is codified discrimination. “Rule of law” is codified persecution. “Patriot” is a cover for “nativist.” Fear, prejudice and ignorance run rampant among Republicans. Fear, prejudice and ignorance run rampant among Democrats. People need to calm down…open their minds (and a decent book) and start learning how to converse civilly, express disagreement politely, put forth their ideas eloquently and listen carefully. Only then will our challenges and struggles be met with thoughtful solutions and positive idealism.

  4. So, the GOP is now trying to legitimize their only non-white candidate for president. Wow, I am so surprised. Hey, GOP, how that’s working for you. The GOP has the same problem that the Beach Boys have your fans are dying and you aren’t getting many new one. Suck on that baby!

  5. Nice try, DeeDee.

    To be natural born per the constitution in order to serve for president, both PARENTS must have been citizens. This is why John McCain WAS “natural born”, whereas Mitt Romney’s father was NOT when he tried to run for president.

    • Cafe Con Leche says:

      First of all, we have nothing to do with anyone named DeeDee. I think you’re confusing us with someone else.

      You’re flat out wrong about natural born citizens. Read the analysis again, and if you don’t believe us read the researched via the links provided.

  6. Arizona Luke says:

    GREAT job and 100% spot on analysis! One thing the ‘Birther camp’ overlooks is the simple fact that Obama is the EIGHTH President that was born with at least 1 parent that was not US-born or didn’t have US citizenship at the time of their birth. So sick of the dumb “Birther” issue that doesn’t to a damn thing to move the Conservative cause forward. In fact, it sets us back BIG TIME.

    You could also note the court case of Lynch v. Clarke, (as well as US vs Wong Kim Ark) which deals DIRECTLY with the issue of the eligibility of a person born in the USA of legal immigrants and if they chose to run from POTUS:

    “… The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “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,” … The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. The position would be decisive in his favor that by the [247] rule of the common law, in force when the constitution was adopted, he is a [Natural Born] citizen…”

    Fact is that this is a losing issue and it will only be those that are addicted to losing who will continue bringing this stupid issue up.

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