The Other McCain

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I Love The Sound Of Citizenship Arguments In The Morning–No I Don’t

Posted on | April 27, 2012 | 44 Comments

by Smitty

Update: Human Events is not Town Hall.

Michael Zak at Human Events:

Now that Mitt Romney has become the presumptive Republican nominee, there is speculation that the junior senator from Florida will be his running mate. Marco Rubio’s parents were from Cuba and did not become U.S. citizens until he was four years old. Voices from the fringe are claiming that this means Rubio is not eligible – and they’re wrong.
Marco Rubio was born is Miami, Florida. He is, therefore, a natural born citizen of the United States. Per the Constitution, the citizenship status of his parents (or grandparents or anyone but himself) is irrelevant.

Read all of Zak’s article for his usual excellent historical treatment, recalling long-forgotten facts. As far as Rubio himself goes, I haven’t heard too much about this line of argument:

  • It smacks of some of the fringier Birther arguments against #OccupyResoluteDesk.
  • It’s can’t be used against Rubio by the Left, except to try to re-inflate the Birther bubble. Come to think of it, the Left could do that as a distraction from ObamaNomics.
  • Except that they have already linked fretting about birth to raaaaacism. Given the rolling disaster that is the George Zimmerman case, I should think that throwing the Latino vote under the bus would be stupid.

Then again, what do I know? I’m one of those whackos that still thinks balancing a budget is a moral and ethical imperative.

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Comments

  • Manicmonkeymojo

    I think that Rubio isn’t constitutionally qualified to be VP or president. His parents owed a citizenship loyalty to Cuba at the time of his birth, which means he also held the same loyalty. He is not a national born citizen, and to state otherwise is to grant the legal argument of the Anchor Baby fanatics.

    Of course there are other reasons for this man to never ascend to the next level of national power: the debts, the misuse of funds, the real estate deal(s). He may talk a great game, but he has a strong flakey vibe that I cannot ignore.

  • http://profiles.yahoo.com/u/YUXELXCCV3QLDBAXGBZZ76CACA Jack Woodward

    Much as I admire Senator Rubio,  Zak is totally wrong here.  The “natural born citizen” clause in the Constitution stems from Emerich de Vattel’s ‘Law of Nations”, which was well known to our Founders.  Vattel’s definition of ‘natural born citizen’ is someone born in a country to a father (later extended to parents) who is also a citizen of that country.  It is common for people to conflate ‘natural born citizen’ with ‘native born citizen’ (as in the Supreme Court decision “United States v. Wong Kim Ark”.  And although this sloppy decision cites English Common Law, there is much evidence that the Founders instead relied on Vattel.)

  • Adobe_Walls

    Your boy Zak gets it wrong again.

  • http://twitter.com/richard_mcenroe richard mcenroe

    “Smith”… that’s “English,” isn’t it?  Aren’t they… foreign?  What exactly is your agenda, mister?

  • jwallin

    The main bright spot to me of Rubio being selected as VP is this.

    If they say ANYTHING about his eligibility to be elected, it will allow US to counter with OBAMA’S place of birth and other significant points about his claims.

    Discovery is a B I T C H.

  • http://www.leftbankofthecharles.com/ Charles

    A Republican ticket headed by a pair of anchor babies? Say it isn’t so. I am shocked, shocked to find childen of immigramts in the Republican Party. As far as Emerich de Vattel, I’m sure the laws of King George III were well known to our founders too.

  • http://profiles.yahoo.com/u/EU5DQWQTTHTPO4A4ZYSL3AAV2U Adjoran

     Fool.

  • http://profiles.yahoo.com/u/EU5DQWQTTHTPO4A4ZYSL3AAV2U Adjoran

    Rubio should not be the VP because he isn’t qualified to be President.  He’s a legislator who has never run anything larger than his legislative staff.  That doesn’t qualify you to run the largest operation in the world.

    We have plenty of current and former Governors to choose from, as well as at least one well-qualified General (if he would be interested).  Let the rising young stars like Rubio and Ryan keep doing their current jobs, eventually returning to their home states to run for Governor and gaining the necessary experience.

    Don’t ruin young talent by rushing it into the big leagues too fast.  Unlike the Democrats, we have a deep and strong minor league program with lots of talent coming up.  Everyone gets his chance in time, when ready.

  • http://twitter.com/richard_mcenroe richard mcenroe

    Be reasonable.  Rubio has many more supporters to screw over in Congress yet before he’s ready to screw over the entire country.

  • http://www.grandoldpartisan.com/ Michael Zak

    Your, ahem, argument against Rubio would also rule out John Fremont and Chester Arthur.

  • http://www.grandoldpartisan.com/ Michael Zak

    Making stuff up about the Constitution is for Democrats!

    Your “reasoning” against Rubio would also mean that John Fremont and Chester Arthur were not eligible to be president, as their fathers were foreigners.

    Best to read my article before commenting on it.

  • Manicmonkeymojo

    The sheer awesome weight of your argument has caused me to re-think my position on this, NAY, on all issues of the day. Let the word go forth throughout the land that at this hour, on this day, and at this place, you, sir, are my guiding light, and the last word on all things. Please forward me your telephone number and email address so that I can contact you as necessary until I pass onto the next non-earthly realm.

  • Manicmonkeymojo

    I read your article, Mr Zak, I just did not find it all that persuasive. At the first level, I believe that you concede that there is a manifest (and not inconsequential) difference between the cases of Rubio and those of Fremont and Arthur: neither of Rubio’s parents (God bless them and their luck in escaping the Castro regime) were citizens at the time of Rubio’s birth, whereas, I believe, at least one of Fremont’s and Arthur’s parents was a citizen at the times of their respective births.

    In the case of John McCain, however, the case is even easier: both of his parents were citizens at the time of his birth.

    As I understand your argument and decision to use Fremont and Arthur as examples, you seem to imply that: a) there’s no difference in the circumstances of Rubio, Fremont, and Arthur (see above for my comments on that issue); and, b) because there’s no difference, neither Fremont nor Arthur were NBCs. Let’s assume that both arms of your argument are correct. So what? All that that means is that the country dodged a bullet in the case of Fremont, and Arthur should be struck from the rolls, and Obama demoted to 43. I’m not sure what the two Bushes are going to do in that case, because they both seemed to get a kick out of calling each other 41 and 43.

  • Callawyn

    Here’s the problem:

    You can not be simultaneously opposed to birthright citizenship on Constitutional grounds, as many Conservatives are, while also holding that Rubio is a natural born citizen.

    The phrase “and subject to the jurisdiction thereof” has to mean something.

    We’re not like the D’s, we don’t wipe our (_|_) with the Constitution the moment it becomes politically inconvenient.

  • Count de Money

    Then try this for size:

    United States v. Wong Kim Ark  169 U.S. 649 (1898)

    But then facts and the law are probably not you strong points.

  • http://thepagantemple.blogspot.com/ ThePaganTemple

    West, Portman, McDonald, Ryan, Bush, or Christie. That’s your short list. If Rubio is an anchor baby, he might still arguably be qualified, but I don’t think its a good idea for a party that mostly seems to favor amending the Anchor Baby law to embrace on for its VP candidate.

  • http://profiles.yahoo.com/u/YUXELXCCV3QLDBAXGBZZ76CACA Jack Woodward

     Michael, your argument seems somewhat circular – Fremont and Arthur were eligible because they were elected(!).

    I don’t intend to rehash the “birther” imbroglio here.  I believe there is plenty of evidence that Vattel played a more prominent role during the Constitutional Convention than did English common law, but the historical record is not clear, there are differing opinions going back to the early 1800′s, and after Minor v Happersett and United States v Wong Kim Ark, the terms “native born” and “natural born” seem fairly well muddled.

  • Count de Money

    And from where do you get this assertion? And wouldn’t it be more reasonable to think that the Founders would use the English Common Law meaning?

    Still, I guess you would be right, but only if you ignore this:

    “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.” – 14th Amendment.

  • Count de Money

    “The phrase “and subject to the jurisdiction thereof” has to mean something.”

    It does. It is there to specifically exclude children of foreign ambassadors born in the US from being able to claim US citizenship. Ambassadors and their dependents have diplomatic immunity and are “not subject to the jurisdiction” of the United States.

    It’s also in line with the English Common Law meaning of “natural born citizen”.

  • http://thecampofthesaints.org Bob Belvedere

    Exactly.  In our breathless fawning over the Cuban Cutie, we forget he is part of The Establishment – always has been.

  • http://thecampofthesaints.org Bob Belvedere

    What’s getting lost in this whole anchor baby argument is: (1) yes, most conservatives oppose allowing the anchor baby law to stand, (2) at the time Mr. Rubio was born, it was law, (3) that law has not been struck down by the SCOTUS, (4) therefore, though conservatives would, if they could repeal the law, we realize that, if we were successful, those who were born under it while it was in effect would retain their citizenship because we don’t believe in ex post facto.

  • Manicmonkeymojo

    Well, the law is my profession, so it’s at least one of my strong suits. The Ark decision addresses the issue of citizenship, not natural born citizenship. These are distinct concepts. Article II does not allow for mere citizens to hold the office of president, there is the requirement that one be a NBC. The law of the case, therefore, was circumscribed by the facts presented to the Court, which strongly suggests that the case is not suitable for the point that you are trying to make.

  • CPAguy

    You miss something….

    …”and subject to the jurisdiction thereof…”

  • CPAguy

    Umm…and other people not born to American parents.

  • http://www.leftbankofthecharles.com/ Charles

    The 14th Amendment cannot be repealed, as part of the Constitution it can only be amended. The only arguments that have been mustered against birthright citizen apply to illegal aliens. No one has seriously proposed that the children born in the U.S. of legal immigrants are not citizens.

  • Count de Money

    Buzzzz…

    No.

  • Quartermaster

    Amendments can be repealed by the same mechanism they were enacted. Take a look at Prohibition.

    No one is saying the kids of legal immigrants are not citizens. The argument is what conditions constitutes natural born, as opposed to simply being an anchor baby. The Vattel argument carries the day as the founders did not blindly follow common law. As I recall, Vattel is the only one that actually defined natural born. In English Common Law, it was basically fall out of other things and is not clearly defined.

  • Count de Money

    I see you need an explanation. Here goes:

    The term “natural born citizen” comes from English Common Law and meant “born under the allegiance and protection of the crown”. Under this definition, people who were not consider citizens were: a) children born to foreign ambassadors; b) people born in areas of foreign occupation; c) people born in areas in rebellion to the crown.

    There was no need to explicitly explain this in Article II because everyone already know what it meant.

    The problem came up after the Civil War. Under that definition, the newly freed slaves couldn’t be citizens because they were born as property, along with anyone who was born in the South because they were in rebellion. So the Citizenship clause was created to explicit say what the term “natural born citizen” implicitly meant.

  • Adobe_Walls

    Bingo.

  • Count de Money

    No I didn’t. That was to specifically exclude  children born in the US to foreign ambassadors. Since ambassadors and their dependents had diplomatic immunity, the were not “subject to the jurisdiction thereof”.

  • Adobe_Walls

    Any amendment can be amended to the point of repeal getting a little semantical here.

    “No one has seriously proposed that the children born in the U.S. of legal immigrants are not citizens.”

    Never too late to start. Obscenely Disproportionate Over Reaction it’s not just for foreign policy anymore.

  • Count de Money

    Here is the flaw with your reasoning and why it’s absurd. Let’s use your example. If Rubio cannot be a citizen because his parents weren’t citizens, then Rubio’s children cannot be citizens because Rubio isn’t a citizen.

    In fact, under your definition, nobody could be a citizen because all (well, almost all) people in this country are descended from people who were citizens of somewhere else.

    In fact, according to your definition, our first bunch of Presidents weren’t eligible because they were all born and descended from British subjects.

  • Manicmonkeymojo

    Yet that’s not what is written, and as the Ark court most assuredly noted in the decision, there was no commonly accepted understanding of how citizenship was conferred at the time of the founding, or at the time the 14th amendment was ratified by the states.

    So, instead of just admitting that this was the case, the Ark majority went about drafting an overly long, convoluted decision that essentially conferred a definition of citizenship that was based upon the mere whim of the majority. One suspects that the decision would have been decided far differently if the question before the Court was whether Mr Ark was qualified to be president of the US.

    While I thank you for your explanation, it is shallow and incomplete, which is surprising given the fact that you introduced the Ark decision into this thread. The fact remains that the Ark decision is not dispositive of the NBC issue, nor should we assume that the it would be dispositive of the Citizenship by Soil vs Blood issue, in that the majority appears to have adopted the definition of the English Crown that one may not abandon one’s fealty to one’s Sovereign (I.e., Citizenship by Soil), which flies in the face of other S Ct decisions (including those cited in the Ark decision itself, which as a great Constitutional scholar and student of the Slaughter House cases, I’m sure you’ve Sheppardized and reviewed before posting on this site) that expressly note that one is entitled to renounce one’s citizenship.

    At best, the Ark Court created a hybrid of Soil/Blood citizenship, and then grafted on entirely new elements that had not been recognized prior to the decision. That is the decision, and we are stuck with it until the Court addresses the issue again. However, to assert that what the 14th Amendment REALLY meant to establish was equivalency between NBC and mere citizenship is silly because all that the Congress had to do was add two words. The fact that they did not is conclusive in my mind, but it is clear that you disagree and feel strongly about your position, which is your right.

  • Manicmonkeymojo

    You are allowing emotion to cloud your critical thinking skills. Rubio is a citizen, just not a natural born citizen. A citizen can be natural born, native born, or naturalized. However, only one of the three can hold the office of president.

    I’d hold off on calling other’s positions absurd when you fail to read what they have written on this site. Look, I understand that you like Rubio, and think that he’d make a groovy VP. Fine, that’s stipulated for the record. But do not prevent that you are the sole source of wisdom on this topic when it’s clear that you have only a passable understanding of the law of this topic, and of the historic evolution of citizenship (a historically new concept) as a successor to Sovereign/Subject

  • Pathfinder’s wife

    Heh, yeah, in spite of whatever to do with his birth status, I can think of a lot more important things that would make him a no-go at the VP station.

  • Count de Money

    Now who’s claiming to be emotional? I have said nothing about whether or not I think Rubio should be VP. In fact, I have no opinion on the subject. That’s your projection.

    What I did say was that your assertion that there is somehow some difference between citizen and natural born citizen is unfounded in both fact and law.The logical conclusion from your assertion would lead to the absurdity that no one can be a citizen.

    And you forgot, or don’t know of a fourth category of citizenship: a derived citizen. Your homework assignment: Go look up what that is.

    If you actually went to law school, if I were you, I’d ask for a refund.

  • Count de Money

    The circumstances behind the Ark case were exactly the same as you claim apply to Rubio.

    The Supreme Court cited the fact (not disputed) that he was born in the US and, according to the 14th Amendment is a citizen of the US.

    In fact, the 14th Amendment amends the Common Law definition for citizen because of the reasons I stated below and also to nullify the Dred Scott decision which held that all blacks, free or slave, weren’t citizens at all.

    Now you may complain that the decision is long-winded, but that doesn’t change the fact that it’s the law. So cite something, anything, that supports your claim that there is somehow a difference between “citizen” and “natural born citizen”.

  • http://profiles.yahoo.com/u/V54MMT2YDO46ECXGFICCMUCGBU Ford Prefect

    I’m continuously amazed at the ignorance of otherwise supposedly educated people.

    Conflating “natural born” with “native born” is the realm of the ignorami.

    We all know that Rubio is not Constitutionally qualified but that doesn’t mean he can’t be nominated. We just need the Congress to pass a resolution that the requirement has been lowered from “natural born” to “native born”.

    I suppose that this might require an amendment to the Constitution but we do need to settle this issue.

    If nothing more than to get these no-nothings to stop claiming that natural born means the same as native.

  • http://profiles.yahoo.com/u/V54MMT2YDO46ECXGFICCMUCGBU Ford Prefect

    Uh, hello. Three kinds of citizens.  This has already been explained.  Stop being dense.

  • Saul

    Mitt Romney an “anchor baby”? That’s cute, but apparently counter-factual. CNN says Mexican statutes denied citizenship to U.S. settlers and their Mexican-born children — including George Romney. That would mean Mitt’s ancestors were all U.S. citizens.

  • http://thepagantemple.blogspot.com/ ThePaganTemple

     What if he’s nominated and it turns out he’s not qualified after all. Even if he is, why hand the Obama Administration a weapon to use as a distraction, one that might take months past the election to iron out. You think that can’t happen? Have you forgotten how many Democrat leftist black-robed freaks there are sitting on the bench that would be more than willing to play along with this Democrat monkey wrench in the works?

    Why go through this crap when there are plenty of eminently qualified men and women Romney might choose from, who would be just as good, and in some cases arguably better than Rubio?

    I appreciate you like the man enough to plead his case. I like him too. But its not worth having to go through endless turmoil when there are innumerable issues we need to focus on, from which we do not need these unnecessary distractions.

  • Count de Money

    You can’t reason someone out of a belief they never reasoned themselves into. Come back when you have an actual argument to make.

  • Saul

    The “natural born citizen” clause in the Constitution stems from Emerich de Vattel’s ‘Law of Nations”

    If you’re going to say the Constitution’s use of “natural born citizen” must be interpreted according to Vattel, then you need to deal with the totality of Vattel’s thinking on citizenship. First, Franklin’s copies of Vattel were in the original French, in which Vattel didn’t speak of “natural born” citizens, but rather, citizens as being “naturals.” The phrase “natural born citizens” is an artifact imposed on Law of Nations by English translators, whose own laws refer to “natural born subjects.” Second, Vattel explicitly equates these three terms: “citizens,” “natives,” and “naturals.” He doesn’t posit different classes of citizens with different rights.  Third, Vattel said quite explicitly that, when he said just being born in a country doesn’t make you a citizen, he was referring to the children of people who were only visiting and would return to their native land. 

    In his sections 214 and 215, Vattel gives some essential clarifications of his views on citizenship. He acknowledges that in England, mere birth makes the children of foreigners citizens. He concedes that the actual laws of nations regarding citizenship must be followed, regardless of his own conceptions about what constitutes “natural law.” And he says that if a foreigner has settled in a new country, he considers their children to be citizens of the new country.

    It looks like Vattel would have considered Rubio to be a “natural” and to have the same rights as all other citizens.

  • http://thepagantemple.blogspot.com/ ThePaganTemple

     Yeah, his argument makes about as much sense as saying Gerald Ford was a better President than Ronald Reagan because Ford beat Reagan for the ’76 GOP nomination.