“Birtherism” and the Tyranny of Ignorance

| March 23 2013
Greg Conterio

Senator Ted Cruz has inspired something of a resurgence of the “Birther” phenomenon over the past week or two.  I continue to be amazed at depth of ignorance on the definition of the term natural born citizen and the certainty with which people continue to repeat false assertions about the meaning of this term.  A small sampling of the sort of thing you can find on this topic around the Internet:

Acquiring US citizenship at birth is not the same thing as being a natural born citizen.
The constitution is NOT vague about this, as the article implies.
Natural born means you were passed through a woman’s birth canal within the physical borders of this country…”

“The simple fact is if his [Ted Cruz’] mother wasn’t serving for the armed forces or some international organization that is accepted he is not going to qualify to run for president.”

“[Name Witheld], you are woefully mistaken. To be natural born, both parents of a person must be born in the US.”

“Actually, just being born to US Citizen-parents is NOT enough to make a person a “natural born citizen”. They must be born on “US soil…”

“Ah, but ‘citizen’, ‘native-born citizen’ and ‘natural-born citizen’ are 3 distinctly separate categories…”

The one thing all these remarks have in common is they are all completely wrong.  Much of this nonsense is due to the fervent desire of many people on the right to “prove” Obama is not qualified to hold the office of president, and their willingness to twist themselves into knots in pursuit of this belief.  The truth of the matter is actually really easy to find if anyone bothers to take a few minutes to do a quick Internet search, and then read what they find.

There are a couple of common arguments cited in support of some of these fanciful definitions of natural born citizen.  One such argument is that English Common Law is actually the controlling authority, another is that Section 1 of the 14th Amendment to the constitution somehow does the trick.  Not quite. 

While it was the source and inspiration for much of the code law in the United States, English Common Law is not any sort of legal controlling authority, and bears no weight whatsoever in determining what is and is not “legal” in the United States.  The 14th Amendment was a part of the flurry of legislation following the Civil War and the abolition of slavery, and the purpose of section 1 was to prevent the former slave states from denying citizenship to one-time slaves, and to cut the legs out from under the onerous Dred Scott ruling of 1857.  Apart from establishing that EVERYONE born on U.S. soil is a natural born citizen, it does not address with any specificity the meaning or definition of the term.

The constitution, in Article II, section 1 lays-out the qualifications required to serve as President thusly:

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.

The illusion of ambiguity created by this lack of a constitutional definition is what leads to so many crack-pot theories as to what exactly a natural born citizen really is, but in reality the matter is not ambiguous at all.  The definition can in fact be found in U.S. Code law, specifically Title 8, Subchapter III, section 1401.  You can follow the link I’ve included and read the entire section if you wish at the U.S. House.gov site.  It is not too long or difficult to read, and covers a variety of different circumstances under which a person is legally defined to be considered a citizen at birth.  I have only included the sections which bear upon Rubio and Cruz for the sake of brevity:

Sec. 1401. Nationals and citizens of United States at birth

-STATUTE-

The following shall be nationals and citizens of the United

States at birth:

(a) a person born in the United States, and subject to the

jurisdiction thereof;

(c) a person 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;

(d) a person born outside of the United States and its outlying

possessions of parents one of whom is a citizen of the United

States who has been physically present in the United States or

one of its outlying possessions for a continuous period of one

year prior to the birth of such person, and the other of whom is

a national, but not a citizen of the United States;

(g) a person born outside the geographical limits of the United

States and its outlying possessions of parents one of whom is an

alien, and the other a citizen of the United States who, prior to

the birth of such person, was physically present in the United

States or its outlying possessions for a period or periods

totaling not less than five years, at least two of which were

after attaining the age of fourteen years: Provided, That any

periods of honorable service in the Armed Forces of the United

States, or periods of employment with the United States

Government or with an international organization as that term is

defined in section 288 of title 22 by such citizen parent, or any

periods during which such citizen parent is physically present

abroad as the dependent unmarried son or daughter and a member of

the household of a person (A) honorably serving with the Armed

Forces of the United States, or (B) employed by the United States

Government or an international organization as defined in section

288 of title 22, may be included in order to satisfy the physical-

presence requirement of this paragraph. This proviso shall be

applicable to persons born on or after December 24, 1952, to the

same extent as if it had become effective in its present form on

that date; and

A few points about section 1401 – The term citizen at birth is a synonym for natural born citizen.  They are not two different terms, with different meanings.  Either you acquire citizenship status as a consequence of your birth, or you do not, period.  If you do NOT acquire citizenship through birth, the only other way to become a citizen is to be naturalized.  A naturalized citizen is entitled to ALL of the privileges, rights & responsibilities that come with citizenship save one: being qualified to serve as president.

If you are born on U.S. soil, under the jurisdiction of the United States, you are a citizen, regardless of the citizenship status of your parents.  The qualification “under the jurisdiction of the United States” is included to except children of foreign diplomats for example, should they be born here while their parents are serving as representatives of foreign powers.  Every time I hear someone spout-off about how Marco Rubio cannot be president because his parents were not citizens, I roll my eyes.

It is also worth paying attention to section (g) listed above, because it is often misread or misunderstood.  The part of section (g) that begins “Provided, That any periods of honorable service in the Armed Forces of the United States..”  is often interpreted to mean that the one parent who is a citizen must ALSO be a member of the armed forces, a government official, etc.  This is not what the section says at all!  This part of the section states that time spent outside U.S. soil  as a member of the military, or serving in some other government sanctioned service will count toward the “time physically present in the United States” requirement of the section.  The bottom-line of section (g) is this: if you were born outside the U.S. but one of your parents is a citizen, and that parent spent at least five years living in the U.S., two of which were after the age of 14, you are a natural born citizen, period.

So what does all this mean?  For starters, it means those who insist Marco Rubio is not qualified to serve as president because he is not a natural born citizen have no clue what they are talking about.  The same goes for Ted Cruz, provided his mother meets the “time living in the U.S.” provision of section (g) above.  The correct, controlling legal definition for this qualification is clearly laid-out in the section of U.S. code law I have linked to above.
One final observation: when you try to read-up on topics like this, sources do matter.  Some guy with a blog, or some attorney with some bizarre sounding legal theory are NOT authoritative sources.  When it comes to law, the ONLY valid source is the published local, state or federal code on the topic.

418 comments
GerryNance
GerryNance

The bottom-line of section (g) is this: if you were born outside the U.S. but one of your parents is a citizen, and that parent spent at least five years living in the U.S., two of which were after the age of 14, you have the right to come to the US before age 18 and claim naturalized US citizenship under 8USC1431, period. Or if you desire to live out of the US but you want US citizenship, then come to the US before age 18,  and  claim naturalized US citizenship under 8USC1433, period.

MrPlutodog
MrPlutodog

So we've lost ol' Reggie Jackson, eh?  He's still alive and a friend of Orly so why'd he give up on this thread?  Doesn't he know that Obama is going to be POTUS until Jan of 2017 since he's left off defending the crazy here?  We know numbnuts Mario is legally impotent and of course Martha is just batty-harmless.  But Reggie, he might've saved the day. ;)

MrPlutodog
MrPlutodog

Actually, I meant Reggie Jackman of course.  Where are you, Reggie?