There are rumblings that Kamala Harris may not be eligible to be Vice President under the 12th Amendment, by virtue of her not being eligible to be President since she is not a ‘natural born Citizen’ (“no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States”).The theory is that while she was born in the United States (Oakland, CA), some combination of her parents not being citizens at the time or not being naturally born Citizens themselves renders her not a natural born Citizen.I examined a similar issue in 2013 with regard to Marco Rubio, Bobby Jindal, and Ted Cruz, and concluded in an 11,000-word analysis that they were eligible. See my post, natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz.
1. Summary
There are few eligibility requirements to be President. You don’t have to be smart, wise, experienced, honest, educated, or a particular gender or race.Article II, Section 1, of the Constitution provides, in pertinent part (emphasis added):
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.
For people currently alive, the three requirements are: “natural born Citizen”; age 35; resident of U.S. for 14 years.
Whether a candidate is a “natural born Citizen” has been the subject of political controversy for well over a century, dating back at least to Chester Arthur, who Democrats at the time alleged was born in Canada, not Vermont. Among others, John McCain, Barack Obama, and George Romney have had their eligibility questioned.
This political season, the eligibilities of Marco Rubio, Bobby Jindal and Ted Cruz are the subject of debate.
As much as we want certainty, the term “natural born Citizen” is not defined in the Constitution, in the writings or history of those who framed the Constitution, or in a demonstrable common and clear understanding in the former British colonies at the time the Constitution was drafted. Nor has the Supreme Court ever ruled on the issue, and it probably never will.
The modifier “natural born” is not used anywhere else in the Constitution, and its precise origins are unclear, although it is assumed to be derived in some manner from the British common and statutory law governing “natural born Subjects.”
There are two ends of the spectrum as which just about everyone agrees: (1) A person born in the United States to parents both of whom are United States citizens is a “natural born Citizen”; and (2) a person born outside the United States to parents neither of whom is a United States citizen is not a “natural born Citizen” even if citizenship later is obtained through naturalization. These are what law professor Lawrence Solum refers to as “cases of inclusion and exclusion.
Rubio, Jindal and Cruz, as did Obama, fall between those points of inclusion and exclusion. Rubio and Jindal were born in the United States to parents neither of whom was a United States citizen at the time; Cruz was born in Canada to parents one of whom (his mother) was a United States citizen.
Under the law existing at the time of their birth, each became a citizen of the United States at birth. Rubio and Jindal by the 14th Amendment, Cruz by statute.
I’ve spent a considerable amount of time examining the issue of what “natural born Citizen” means in this context. While concepts such as “jus soli,” jus sanguinus” and “natural law” are part of the equation, such concepts do not adequately answer the question, no matter how many times or how vigorously they are repeated. Similarly, relying on statutes governing citizenship does not answer what “natural born Citizen” means in the Constitution and does not render the question trivial.
There is a false construct all around that this is a purely legal question subject to some absolutely right or wrong conclusion. We should all just admit that we don’t really know for sure what “natural born Citizen” means or meant between the points of inclusion and exclusion.
So what to do in a constitutionally and politically important area in which there is no clear legal answer?
The key to understanding why I reach that conclusion that Rubio, Jindal and Cruz are “natural born Citizens” requires understanding the problem.
There are strong arguments in favor of Rubio, Jindal and Cruz each being a “natural born Citizen” as that term most reasonably can be understood through its plain text because they became citizens by birth. Their “natural born Citizen[ship]” also is consistent with the concepts, respectively, of citizenship by birth place (Rubio, Jindal) and parentage (Cruz), from which the term “natural born Citizen” is believed to derive historically.
The arguments that the term “natural born Citizen” excludes Rubio and Jindal (because their parents were not citizens) or Cruz (because he was born abroad to a citizen mother only) at most raise doubts. Those doubts, however, never rise anywhere near the level of making the case that Rubio, Jindal and Cruz are excluded. Most of the counter-arguments are historical conjecture, at best, and rely on speculation not connected to the text of the Constitution or any demonstrable actual intent or understanding of the Framers.
In the circumstance of candidates who appear to qualify based on the text of the Constitution and the traditions upon which “natural born Citizen[ship]” is believed to derive, and as to whom there are at worst some doubts raised, I believe the proper constitutional outcome is to leave the issue to the political process. To exclude apparently eligible candidates based on speculation as to what the term “natural born Citizen” might have meant is no better, and I would argue much worse.
Remember, these are merely eligibility requirements, not requirements that a person be elected. It would be consistent with the Framers’ demonstrable concerns to consider loyalty to the United States as a political factor, even if not absolutely legally disqualifying. If you don’t trust the loyalty of a candidate because of how he or she became a “natural born Citizen,” don’t vote for the person.
I set forth below my approach and reasoning.
Here’s the Conclusion:
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14. CONCLUSION – It’s The Text
By now your heads must be spinning. It’s understandable. This is a very confusing area as to which scholars acting in good faith disagree, although there is a clear weight of authority. But those disagreements, in a sense, are the solution.A reasonable reading of the plain text of the Constitution supports Rubio, Jindal and Cruz being “natural born Citizen[s]” because they were citizens by birth. There is no clear, demonstrable intent otherwise from the Framers or clear, commonly understood use of the term to the contrary at the time of drafting the Constitution. The British term “natural born Subject” as well as concepts of “natural law” were not clearly relied upon by the Framers, and are in themselves not clearly contradictory to this plain reading of the text.The burden should be on those challenging otherwise eligible candidates to demonstrate through clear and convincing historical evidence and legal argument why such persons should be disqualified. That has not happened so far, and if two hundred years of scholarship is any indication, it never will happen.The ultimate arbiter on the issue likely is to be voters, not Supreme Court Justices.It is for these reasons that I believe Marco Rubio, Bobby Jindal and Ted Cruz are eligible to be President.
There you go. You want the reasoning, read the prior post.
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