I’m opening up a huge can of worms here, because people can (and will) argue about this till the cows come home or longer (it’s been going on for many years already, and no end in sight), but yesterday’s thread on Rubio engendered a lengthy comments-section discussion of the term “natural born citizen,” and I want to state my point of view in a post.
I realize that people will define “natural born citizen” any way they think makes sense. Law is like that, and legal terms are terms of art that can be argued almost endlessly, and often are. The point is that the courts are highly highly unlikely to agree with the very narrow definitions of the term that some people want them to adopt (to exclude Rubio, for example, whose exact fact situation is not addressed by precedent), and my opinion is that the courts would be correct in rejecting those arguments.
“Natural born citizen” is a phrase that was not defined in the Constitution, nor did it have a strong common law tradition of use to point to, and it has been used mainly ever since to distinguish such a person from a “naturalized citizen.” The latter is not a citizen of this country at the time of birth, and is never eligible to be president or vice-president.
A 2011 Congressional Research Service report stated this view in more precise legal language than I’ve just done:
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”, either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth”. Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.
Someone could be born to citizens living legally in another country (such as John McCain) and even live there for quite some time, and still be a natural born citizen. Someone can be born here to non-citizens “under the jurisdiction of the US” (legal permanent residents seeking citizenship) and still be a natural born citizen—that is, a citizen at birth. Rubio did not have to be naturalized because he was born here under those circumstances, and as far as I know no one is asserting he is a naturalized citizen.
There is no doubt that a lawyer could make an argument that Rubio, or someone with similar conditions of birth, is not a natural born citizen. A lawyer could make an argument (and will, if someone pays him/her) that the moon is made of green cheese—although I’m not suggesting the argument about Rubio is anywhere near as fanciful as that. But the fact that it can be argued does not make it correct, nor does it mean it has much of a chance of carrying the day in a courtroom.
I’m not shilling for Rubio’s nomination, either. I’m talking about the law. I’ve been listening to people strain and strain for definitions of “natural born citizen” for a long time. It reminds me of the plot of “Macbeth,” where Macbeth is told he can only be defeated by a man not “of woman born.” He thinks he’s safe, but it turns out Macduff was “from his mother’s womb untimely ripped” (i.e. born by Caesarean). I keep thinking (and yeah, I’m not completely serious here, but I wouldn’t say it’s impossible) that the next step will be people trying to define “natural born citizen” as excluding people born by Caesarean section, or people conceived in vitro.