(Response to The Election 2028 Prospects As of Now)
Dear Mr. Schaper:
Your current article on Republican and Democrat prospects for 2028 bring up an important issue for the GOP. Neither Rubio nor Cruz are eligible for the presidency.
Secretary Rubio was born to Cuban-citizen parents. Senator Cruz was born in Canada to a Cuban-citizen father. The Constitution requires those in the highest office to be "natural-born" citizens as opposed to just "citizens", the requirement for members of Congress.
If either man becomes the Republican nominee, the Democrats would need but a single swing-state supreme court to rule him ineligible for the ballot. In 2024, Democrats used a similar effort to keep President Trump off of state ballots in Colorado. So there's precedent.
The Constitution was ignored by both political parties in 2008 and 2012 when the son of a British subject ran for high office. In 2020, Kamala Harris was elected vice president even though both parents were citizens of foreign countries.
Scholarship and history show that the Framers understood the term "natural-born citizen" to mean a person born on U.S. soil to parents who were U.S. citizens at the time of the child's birth. Legal challenges in 2008, 2012, and 2020 were turned back by the U.S. Supreme Court on technicalities. Justice Thomas has indicated the court is loathe to take up this hot button issue and definitively rule on the intentions of the Framers.
Perhaps, one day we'll select presidential candidates through a search for the best people for the job. Political parties tend to crown candidates based not on merit but rather on current popularity or, in some cases, a sense of entitlement. Hopefully, in the future, the only angst for a voter will be having to select a candidate from among several eminently qualified people.
Best,
Harold Winard
Wharton, New Jersey
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Harold:Thanks for writing!Cruz's mother is an American citizen from Delaware, so that established his citizenship, even if he was born in Canada.As for Rubio, he was born in Florida, and his parents were legal residents.Rubio was born on American soil.The Framers included key requirements for the presidency:
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The Framers, many of whom were also Founders, were educated men, accomplished in political philosophy and experienced in government. We would be safe in assuming they took their task, in Philadelphia, very seriously.
Let me start by pointing out that the Framers set eligibility requirements for both the presidency and Congress. For the latter, simple citizenship is required. However, the presidency requires "natural-born" citizenship. A court of law, for example, would look at this as evidence of a special status for natural-born citizenship and would ask why such a distinction was required.
Records of the Constitutional Convention in 1787 show that early drafts of the document required just citizenship for the presidency. But in the final draft, "natural-born" was included. Why the change? The answer lies in a letter from future chief justice John Jay to his friend George Washington. Concerned that a foreign interloper might succeed to high office, and command of the military, Jay wrote:
"Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen."
After Jay's letter, Article II was changed to include the requirement of "natural-born" citizenship for presidential eligibility.
The Framers left no definition of "natural-born citizen". But it is easy to deduce why. The phrase was commonly understood to mean birth on the soil of a country to parents who were citizens. This was the definition of the influential 18th century Swiss jurist Emmerich de Vatell. In Section 212 of his "Laws of Nations", Vatell wrote:
"The natives, or natural-born citizens, are those born in the country, of parents who are citizens."
Conventionist Benjamin Franklin had several copies of Vatell’s work in his library, including the original French. Several years ago we learned that convention president Washington had borrowed a copy from a New York City private library, which he never returned.
Political scientists of the late 18th century knew what "natural-born citizenship" meant. There was no need to define it, other than to show the distinction of the lesser requirement for membership in Congress.
Changes to the Constitution require an amendment, a long process that begins in Congress but requires buy-in from a strong majority of the states. Each state debates the proposed amendment and votes to approve, or not. This is a length process, likely taking years.
The Framers were all citizens of the United States, and had been so since declaring independence from England in 1776. Because of the need to provide for leadership before the first eligible natural-born citizen, the Framers included this phrase in Article II:
Let me start by pointing out that the Framers set eligibility requirements for both the presidency and Congress. For the latter, simple citizenship is required. However, the presidency requires "natural-born" citizenship. A court of law, for example, would look at this as evidence of a special status for natural-born citizenship and would ask why such a distinction was required.
Records of the Constitutional Convention in 1787 show that early drafts of the document required just citizenship for the presidency. But in the final draft, "natural-born" was included. Why the change? The answer lies in a letter from future chief justice John Jay to his friend George Washington. Concerned that a foreign interloper might succeed to high office, and command of the military, Jay wrote:
"Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen."
After Jay's letter, Article II was changed to include the requirement of "natural-born" citizenship for presidential eligibility.
The Framers left no definition of "natural-born citizen". But it is easy to deduce why. The phrase was commonly understood to mean birth on the soil of a country to parents who were citizens. This was the definition of the influential 18th century Swiss jurist Emmerich de Vatell. In Section 212 of his "Laws of Nations", Vatell wrote:
"The natives, or natural-born citizens, are those born in the country, of parents who are citizens."
Conventionist Benjamin Franklin had several copies of Vatell’s work in his library, including the original French. Several years ago we learned that convention president Washington had borrowed a copy from a New York City private library, which he never returned.
Political scientists of the late 18th century knew what "natural-born citizenship" meant. There was no need to define it, other than to show the distinction of the lesser requirement for membership in Congress.
Changes to the Constitution require an amendment, a long process that begins in Congress but requires buy-in from a strong majority of the states. Each state debates the proposed amendment and votes to approve, or not. This is a length process, likely taking years.
The Framers were all citizens of the United States, and had been so since declaring independence from England in 1776. Because of the need to provide for leadership before the first eligible natural-born citizen, the Framers included this phrase in Article II:
"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."
This "grandfather clause" covered several of the Framers who, like George Washington, later went on to serve as chief executive.
Consider the child of an illegal alien who was born, on U.S. soil, moments after his mother was carried across the Rio Grande into Texas. The Mexican-citizen mother and new American citizen baby return to Mexico where the child grows up and is educated in Mexican schools. Twenty-one years later, now a young man, the child returns to the United States and lives the next 14 years in, say, Seattle. On his 35th birthday he declares his intention to run for president of the United States. Would the Framers be comfortable with this situation?
Marco Rubio and Rafael "Ted" Cruz are citizens of the United States and both served admirably in Congress. The Constitution bars both from the presidency and vice presidency. I am sure if Republicans do a search they can find eligible candidates who satisfy both the Constitution and the nation's need for leadership.
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