Is Rubio Eligible?

July 31, 2012 at 7:13 am

I would like to address an issue that is apparently of concern to a significant number of people. In my “Ask Fred” column, several people have expressed concern (some have been adamant and angry) that Marco Rubio should not be selected as the Vice Presidential nominee because he would not be eligible to be President, if the need arose. They contend that at least one of his parents were required at the time of his birth to have been a citizen for him to fulfill the constitutional requirement of eligibility, even though he was born on American soil.

To buttress these arguments, these writers have sent along a number of snippets, quotations and irrelevant comments by judges – often taken out of context – that they say support this position. They are all incorrect.

Let me make a couple of things very clear.

First, this is a legal question. Therefore, the test with regard to a question such as this is, “What would the Supreme Court likely hold if the question were presented to it?” This is a common exercise. There are many unresolved legal questions in our society. That is why we have the Court. It doesn’t mean that we have to like the decision or agree with it or that we even have to like the Supreme Court. That’s just the way we determine the law or the probable law in this country.

Second, I’m not touting Rubio. I think that he is a charismatic politician with a bright future. He is also untested on the national stage. I can see arguments for and against him. But I won’t sit back and watch him get caught up in a bunch of foolishness that misleads people about his eligibility to be President. Besides, this question affects others in addition to Rubio.

This may raise questions about Gov. Bobby Jindal, Gov. Nicki Haley, as well as Ted Cruiz, a candidate for the Senate in Texas. Mind you, a person has the right to believe anything he or she wants about anyone’s qualifications. But these questions that have been raised about the qualifications of these Republicans of great promise are simply not based upon precedent or history. Specifically, the chances that the Supreme Court would rule that Marco Rubio is not eligible to be President because of the citizenship of his parents at the time of his U.S. birth are less than remote, regardless of the future composition of the Court.

So why do I say this with such authority?

The answer is the English common law, which formed the basis for our own legal structure, opinions of our Founding Fathers, U.S. court decisions, and the 14th Amendment. Article 1 Section 2 of the Constitution says, in part: “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….” Therefore, the issue becomes who is a “natural born citizen” (NBC)? It is not defined in the Constitution.

For many years there have been people who have contended that being born in the U.S. was insufficient to be a NBC and that one’s parents have to be citizens also. Comments to that effect have appeared in Congressional debates, treatises, and even in a court opinion or two many years ago. Some writers in recent years, arguing for the logic of this position, have pointed out that the requirement of natural born citizenship was intended to protect the nation from foreign influences. The fact that there are folks on this side of the issue should not be surprising. The meaning of almost every word of the Constitution has been argued over.

The fact is that these opinions are in the distinct minority. And in the rare instance when a judge has said that a NBC must have parents who are citizens, it has not been part of the decision in the case. Such comments have been gratuitous or “dictum,” as the lawyers say. That is, not necessary to the actual holding in the case.

Previous Court Scenarios

Where the issue has been squarely before a court, the result has been otherwise. In Lynch v Clark, decided in 1844, the issue was the right to inherit. The New York court held that the child, born in the U.S. of British subjects, could inherit because she was a NBC. In 1898 the Supreme Court in U.S. v Wong Kim Ark held the same way. Those cases are still good law today. These courts relied upon , in part, the English common law in deriving the intent of the Founders and pointed out that in England being born on English soil was sufficient for citizenship. The statements of James Madison, for one, make it clear that the Founders had no intention of deviating from the common law in this regard. This is further supported by official opinions of our nation’s Attorney Generals going back several years.

Finally, the 14th Amendment was ratified in 1868, which states, in part: “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.” Reading this together with Article 2 would indicate that the additional “natural born” requirement of Article 2 for a citizen to be eligible to be president meant that being “naturalized” would not suffice. He must be born here.

In 2011 the Congressional Research Service accurately stated, “The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth” …by being born in the United States and under its jurisdiction, even those born to alien parents…”

While the Supreme Court has never directly addressed the question of a specific presidential candidate’s eligibility as a NBC, it is inconceivable that the Court would depose a president who was born on American soil. Some people love to excite and stir us up but we have an election coming up, folks. May I suggest that we resist the temptation to chase every rabbit that comes down the trail and focus, instead, on that?

- Fred Thompson