But the Supreme Court doesn’t do this with other constitutional questions. It doesn’t take no position on abortion, for example, and say, “Hey, if the voters elect a legislature that outlaws abortion, then it must not be a constitutional right.”
IOW, the constitution provides 4 things that must be done to be elected President:
Be a natural born citizen
Age 35 or older
Resident of the United States for the past 14 years.
Win a majority of the electoral college vote (or the tie-breaker in the House)
By not enforcing, #1-#3, and letting them collapse into #4, the first three restrictions are meaningless and everything works out the same had they been left out of the Constitution entirely. It makes sense that when someone writes words, they did so for a purpose and not simply to make them a nullity.
Sure, but it wouldn’t make those people natural born citizens unless a court decided that that was the definition. Congress has the power to make people citizens, but the extent to which that makes said citizen’s “naturally born” is up to the courts.
No it doesn’t. The definition is still up to the courts. If SCOTUS rules that "natural born citizen"is whatever Congress says it is, then that would allow Congress to define constitutional terms, but that hasn’t happened. And even then, it wouldn’t be “unilaterial”, the definition would still depend on the Courts judgement, not Congresses.
There are no terms in the Constitution that Congress can define out of existence*.
*(well, I guess there are cases where the Constitution explicitly leaves it up to Congress: “high crimes and misdemeanors” for example, but in anycase “naturally born” isn’t such a case).
It sounds like we are in agreement then. So Ted Cruz, John McCain, and fictional Kenyan-born Obama are or are not natural born citizens based upon what a court would decide and has nothing to do with a law about the Canal Zone, or a law that says one parent can pass on her citizenship, or that fictional Obama’s mother was 19 and completed the residency requirement.
All of those are laws which may or may not be the basis for “natural born” citizenship. So why all the discussion of these laws when we ponder if these people are eligible for President?
I really don’t think the intent of the law was to deny citizenship to the child of an 18 year old woman who had lived all 18 years of her life in the U.S. except for let’s say the last couple weeks of her pregnancy spent abroad. Not when it would grant citizenship to the child of another woman, who was born in the U.S. to two vacationing Kenyans, who immediately returned home with her parents; but then she was sent to live with a cousin in the U.S. from her fourteenth to her nineteenth birthday (or fifteenth to twentieth, depending on how you read the law), after which she went back to Kenya again. Then, at age 40, she has a baby with a Kenyan father, having spent no further time in the U.S. than what was described above, and that child is a citizen. Does that really sound like a sensible intent?
You asked “what other interpretation is possible”. I think it was sloppily written, but that the clear intent was to keep people who had only lived in the U.S. as young children from passing on U.S. citizenship within their countries of residence. They are kind of making two classes of U.S. citizens: those who have their own citizenship as long as they live, but cannot pass it on while living abroad; and those who are “citizen breeders” or whatever. As long as you have at least five years plus of fertility left, you can always convert into the “super” category; but again, I just don’t think they intended someone of marriageable age like Ann Dunham, who had lived in the U.S. virtually all her life and had American ancestors going back many generations, to be disqualified while the hypothetical woman I described would be eligible.
Under the rules of statutory construction that most courts follow, if a law is unambiguous on its face, you don’t start looking into legislative intent. If the law says 5 years after age 14, there’s no ambiguity there. That would be the end of it.
I don’t think we agree. A court may well decide that whether one is a natural born citizen depends on the laws when they were born. In that case what Congress decided the criteria for citizenship could well determine ones status as “natural born” or not.
Again, the definition is up to the courts. But that definition may well include a dependence on statutory law. (indeed, prior to the 14th Amendment, it almost had to, since there was not Constitutionally mandated standard for citizenship for people born after 1776 except for empowering Congress to come up with some.)
Right, this is a great point. On the one hand, you can listen to Obama speak, and see him retail politicking, and see that he is definitely American, and not just technically American. He has an American accent when speaking, he makes little references and so on to things that only an American would.
On the other hand, leaving his birth aside, he did live abroad for a number of years as a child, and not in a really culturally similar place like Canada (or even the UK or Australia). He has a “foreign” name. And he has siblings that were born and raised abroad. That is different from the background of the vast majority of Americans. I think it gives him an interesting perspective that is an asset; but I can’t hold it against someone if they see it as a reason not to vote for him, the way I would hold it against him if the reluctance is based purely or primarily on his skin colour.
I think if someone were thought to have been born just before midnight on Nov. __ of 35 years previous, but then it were somehow discovered that s/he was really born after midnight, it really wouldn’t make a meaningful difference. If they were discovered to be years younger and lying about it all that time, that would be something else entirely. In the case of Obama, there is no dispute as to who his parents are, the approximate date he was born, and where he lived his life (abroad and in the U.S.) other than maybe a matter of days or weeks when he was an infant. And even then, the only dispute is based on a poorly worded law putting 18 year old U.S. citizens in a different category from 19 year olds.
I would argue btw that when the SCOTUS refuses to hear a case, they are implicitly making a decision: that the highest federal appeals court made the right call, and that it isn’t worth spending any more time on it than that.
While it wouldn’t apply in Obama’s (hypothetical, Kenyan-born) case, there is ambiguity even in the wording. Is “including five years after age 14” satisfied by someone being there all their life until their nineteenth birthday, or their twentieth? That is, does the year when they are exactly 14 count as one of the five years, or does the clock only start on that five years after they are no longer 14?
So that ambiguity could be sorted out by using the legislative intent to see if it means 19 or 20. But it can’t mean 18. It can’t mean something it obviously doesn’t say.
It’s like saying that the “35 year old” requirement in the Constitution is not really 35 years, it just means that the candidate should be a mature, solid adult. So if one is such at 33, he should be allowed to run.
A court may decide that. It also may decide that by its very definition, the term “natural” applies to an inherent concept outside of statutory law. In fact, because a statute had to be enacted to make Cruz, McCain, and fake Obama citizens, then that makes them de facto NOT “natural” born citizens.
What standards would they use? Who knows, but Terr outlined a pretty good argument. Obviously a person born on American soil from two American parents is naturally born by any definition. And just because that same kid was born prematurely in Niagara Falls, Ontario to the same parents visiting the falls would probably be just the same. Other things? I dunno, maybe. We would all be guessing.
But I don’t think that statutory construction means anything in this situation except to the point that if the court thought that Congress was acting in good faith, it might see things the same way.
I think it’s pretty obvious it didn’t mean either 19 or 20, so that would almost certainly be a fruitless search for legislative intent to point one way or the other. Didn’t this law subsequently get changed precisely because it was so poorly thought out?
Let me re-pose my previous question a different way. Let’s imagine that, when the law in question was originally debated, someone pointed out to the lawmakers something like:
My question is: had this been so carefully pointed out to the legislators, would they really have left every jot and tittle just as is?
Terr is absolutely correct here. People (or at least aNewLeaf) seem to be reading something into his posts that really isn’t there. The Constitution does not define the term “natural born citizen”. Now, we can (and do) make certain assumptions about what they meant by the phrase, but we cannot say with any certainty that the Framers meant X.
Certainly we can, it’s right there in the document.
There are two ways to be a citizen, by naturalization, an act of man. Or by birth, an act of nature.
If you were a citizen at birth you were born a citizen. Natural citizenship by birth. Natural born citizen.
It’s not hard to understand if you’ve read a bit of Jefferson’s writings, it’s quite Jeffersonian in concept.
While natural born citizen is clearly related to the circumstances of a person’s birth, what those exact circumstances are is not defined. Some citizens are citizens by birth who were not citizens at birth, for example John McCain. While it may be assumed that anyone who was a citizen at birth is a natural born citizen, it is not so clear in the case of those who were not.
It’s not right there within the document. Birth within arbitrarily defined national boundaries is hardly an “act of nature”. I agree (as does Terr, from what I’ve read) that this is the most logical interpretation, but it isn’t the only one.
But we do know that courts enforce the laws as actually written and passed by Congress, not the laws they think Congress would have passed had Congress had more information or thought it through more carefully. Nor do they enforce the laws that opponents of the law think Congress should have passed instead, no matter how persuasive the arguments of the opponents might seem.
Unless I missed something, I doubt it’s been resolved that McCain was not a citizen at birth. The circumstances of my birth are similar to his, born elsewhere to US citizens, one on active duty. Geographic location didn’t seem to be the determining factor in my case, and I’m not sure why it would be in his.
