In connection with our previous posting we have been following – with bemused legal interest – the uninformed and in part duped “Birthers” false campaign against President Obama’s legitimate birth as a U.S. citizen, a “natural birth” amply demonstrated by his birth certificate:
The U.S. Supreme Court and other courts have denied hearing this issue – not only because there is no serious legal question about Obama’s eligibility for the Presidency, but also – in the case of the Supremes – because the present Supreme Court would not likely have the necessary courage to correctly declare the applicable Constitutional Presidential eligibility provision to be unconstitutional, as it surely is in view of the 5th and 14th Amendments to that Constitution.
What is disturbing is that many American citizens – all of whom trace their own citizenship to what were once “foreign born” immigrants – now try to draw a class distinction between citizens who are “foreign born” and those who are “native born”, as if the place of birth would somehow better guarantee a citizen’s loyalty, which, as we know in the age of terrorism, is simply not the case. Critical is not the paperwork of birth but rather the internal allegiance.
The law recognizes no legal distinction between Americans based on natural or naturalized citizenship (naturalized means that the citizenship is the grant of a citizenship which is the equivalent to “natural born”), and all citizens – once they are citizens – are seen by the law to be “equal” before the law, without exception.
The clearly discriminatory provision of the Presidential eligibility clause is surely unconstitutional today by virtue of the due process clauses of the 5th and 14th Amendments to the U.S. Constitution, which would absolutely prohibit the creation of two classes of U.S. citizens, one of which would have superior rights. Indeed, the current discussion in the USA is the direct and expectable product of the anti-American notion that there are two different classes of citizens in the USA. Such a discriminatory provision only feeds the fires of discrimination and divisiveness. We say this not only on behalf of Obama but also on behalf of Arnold Schwarzenegger, who should not be denied the opportunity to be U.S. President by an anachronistic law.
The applicable Section 1 of Article II of the U.S. Constitution provides:
“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. ” [emphasis added]
As discussed at the Wikipedia:
“The requirements for citizenship, and its very definition in American statute law, have changed since the Constitution was ratified in 1788. Congress first recognized the citizenship of children born to U.S. parents overseas on March 26, 1790, stating that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.” To date, the Naturalization Act of 1790 has been the only U.S. law explicitly conferring statutory “natural born” citizenship. In 1795, Congress removed the words “natural born” from the law; the Naturalization Act of 1795 says only that foreign-born children of American parents “shall be considered as citizens of the United States.”
All persons born in the United States, except those not subject to the jurisdiction of the U.S. government (such as children of ambassadors or other foreign diplomats) are citizens under the Fourteenth Amendment. Additionally, under sections 301–309 of the Immigration and Nationality Act (restated in sections 1401–1409 of Title 8 of the United States Code), current U.S. law defines numerous other categories of individuals born abroad, as well as people born in most U.S. territories and possessions, as being “nationals and citizens of the United States at birth.” The phrase “natural born citizen,” however, does not appear in the current statutes dealing with citizenship at birth.
The law governing the citizenship of children born outside the U.S. to one or more U.S.-citizen parents has varied considerably over time. Current U.S. statutes define various categories of individuals born overseas as “citizens at birth,” including (for example) all persons “born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person[s].”
The definition of the “United States”, for nationality purposes, was expanded in 1952 to add Guam, and in 1986 it was expanded again to include the Northern Mariana Islands. Persons born in these territories (in addition to Puerto Rico and the U.S. Virgin Islands) currently acquire U.S. citizenship at birth on the same terms as persons born in other parts of the United States. The category of “outlying possessions of the United States” (whose inhabitants generally have U.S. “nationality” but not U.S. “citizenship”) is now restricted to American Samoa and Swains Island.
“Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.”
The foregoing section of the FAM only addresses citizenship by jus soli: In short, what is the geographic scope of the “United States”? This does not affect citizenship via jus sanguinis, i.e. those who are born abroad to U.S. citizens and who otherwise meet the qualifications for statutory citizenship. The State Department also asserts that “the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.” This position seems to be at odds with the fact that Congress in 1790 felt it could confer natural born citizenship on those born abroad to American parents. Ultimately, it will take a Supreme Court decision to settle the matter once an American citizen born abroad runs for and wins the presidency.“
Here is our own discussion of this topic as posted previously at LawPundit:
“The Presidential Eligibility clause ….
The Yale Law Journal has picked up on this issue at its online Pocket Part companion, citing to
Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential Eligibility: Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988) writing:
“Last week, the usually obscure Natural-Born Citizen Clause of Article II of the Constitution became the subject of newfound media attention. As the New York Times reported, the candidacy of Sen. John McCain, born in the Panama Canal Zone, has revived a “musty debate”: Is a person born abroad of American parents a “natural born Citizen” eligible to be president? As noted in the article, Jill Pryor, writing in the Yale Law Journal twenty years ago, examined this very issue.“
What interests us there is her Footnote 11, where she writes:
“11. U.S. CONST. amend. XIV, § 1 (“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.”)., .
The natural-born citizen clause and the naturalization powers clause come together in section one of the Fourteenth Amendment since the Amendment both distinguishes native-born and naturalized citizens (“born [in] or naturalized”) and equalizes them (both are guaranteed the same rights under the Amendment). See infra Section II-B.“[emphasis added]
Hence, no State should be able deny ANY citizen from running for the office of President of the United States, for all citizens have the same rights and there is no difference between them in the eyes of the law.
However, the 14th Amendment applies to the States and not to the Federal Government:
“The 14th amendment is not by its terms applicable to the federal government. Actions by the federal government, however, that classify individuals in a discriminatory manner will, under similar circumstances, violate the due process of the fifth amendment. See U.S. Const. amend. V ….”
In other words, the same rule applies to the Federal Government through the 5th Amendment:
“[I]n Bolling v. Sharpe 347 U.S. 497 (1954), the Supreme Court averred that it was absurd that the Constitution could deny the states the power to abridge equal protection of the laws, yet permit that power to the Congress. “[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive,” reasoned Chief Justice Earl Warren. The Court thus interpreted the Fifth Amendment’s due process clause to include an equal protection element but has continued to hold that there is a difference between due process and equal protection in its Fourteenth Amendment jurisprudence.“
What this means in terms of the development of modern Constitutional Law and Human Rights is that the Presidential Eligibility requirements are no longer valid law. If “born citizens” and “naturalized citizens” are both guaranteed the same rights under the 5th and 14th Amendments to the Constitution of the United States, then it can not be that they have different rights as to their eligibility to be elected President of the United States, so that the original language of the Presidential Eligibility clause is clearly preempted by those same 5th and 14th Amendments to the U.S. Constitution.“