Monday, November 30, 2015

Attoreny Mario Apuzzo once again sets the record straight about the Article II "natural born Citizen" requirement.

Excerpt via Atty. Apuzzo:

A Citizen is One Thing, But a Natural Born Citizen is Another

Understanding that a citizen of the United States (“citizen”) is one thing, but that a natural born citizen of the United States (“natural born citizen”) is another is the key to understanding what a natural born citizen is.  To avoid constitutional error, it is critical that these two classes of citizens not be conflated, confounded, and confused.  There are different way by which one can become a citizen.  But none of that does or should change what a natural born citizen is.

Why is it important that we understand the constitutional distinction between a citizen and a natural born citizen and give the correct meaning to a natural born citizen?  It is important because the Framers looked to the natural born citizen clause, apart from the Electoral College, through its requirement of absolute allegiance and love of country, as a means to provide for the safety and national security of the republic.  They looked to the natural born citizen clause as a way to keep monarchical and foreign influence out of the singular and powerful civil Office of President and military Office of Commander in Chief of the Military.   The Framers saw such monarchical and foreign influence as an insidious way to destroy what they had so greatly sacrificed to build.

The historical record is replete with examples showing how the Framers sought to keep monarchical and foreign influence out of the Office of President and Commander in Chief of the Military.  For sake of brevity, I shall focus on this one example.  Alexander Hamilton gave a speech to the Convention on June 18, 1787.  He read to Convention his Propositions for A Constitution of Government.  See Works of Alexander Hamilton  (page 393); 3 Max Farrand, The Records of the Federal Convention of 1787, at 617 (1911)  (Farrand).  This speech contained a sketch of a plan which has become known as the English Plan.  This plan can be read here, .  James Madison informed us in his Convention notes that “[i]t meant only to give a more correct view of his ideas, and to suggest the amendment which he should probably propose to the plan of Mr. R. in the proper stages of its future discussion.  Although this plan was not formally before the Convention in any way, several of the delegates made copies . . . Farrand.  at 617.  Hamilton proposed in his Propositions that the "supreme executive authority of the United States to be vested in a Governor. . ." and that he also be the "commander-in-chief. . ."  In this initial sketch, Hamilton did not include any eligibility requirements for the supreme executive authority who he would call the President rather than Governor in his later draft of the Constitution.  In his speech to the Convention, Hamilton advocated an executive for life.  The reason that he gave for such a life position was the following:  “The Hereditary interest of the King was so interwoven with that of the Nation, and his personal emoluments so great, that he was placed above the danger of being corrupted from abroad-and at the same time was both sufficiently independent and sufficiently controuled, to answer the purpose of the institution at home. one of the weak sides of Republics was their being liable to foreign influence & corruption. Men of little character, acquiring great power become easily the tools of intermedling Neibours.”  Id.  Here we can see that Hamilton was very concerned with the harm that could be done to the nation by an executive who was corrupted by foreign influence and intrigue.

This “sketch of a plan of government” was not formally presented to the Convention, but delegates, including James Madison, had various copies of this plan.  Farrand, at 617.  This plan does not include Hamilton’s “born a citizen” language which he included in his later draft of a constitution.

On July 25, 1787, about five weeks later, John Jay wrote a letter to then-General Washington, who was acting as president of the Constitutional Convention, stating:

"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 expressly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen" (“born” underlined in the original). .

John Jay reminded General George Washington of the importance of remanding back to the original concerns of the people and offered his presentation, to which George Washington offered, verbatim, to the convention.  Alexander Heard and Michael Nelson, Presidential Selection 123 (Duke University Press 1987) via Google Books.

Jay demanded that there be a "strong check" on foreign influence infiltrating the national government in general and the Office of Commander in Chief of the Military specifically.  A “natural born subject,” as defined by the English common law, which permitted dual and conflicting allegiance at birth, would not have provided that strong check on foreign influence for which Jay was looking.

On September 2, 1787, George Washington wrote a letter to John Jay the last line of which read:  "I thank you for the hints contained in your letter."  4 Documentary History of the Constitution of the United States of America 1786-1870, p. 269 (1905).   While the Committee on Detail originally proposed that the President must be merely a citizen as well as a resident for 21 years, the Committee of Eleven changed "citizen" to "natural born citizen" without recorded explanation.  On September 4, 1787, about six weeks after Jay's letter and just two days after Washington wrote back to Jay, the "natural born citizen" requirement appeared in the draft of the Constitution.  Here is the first style of the clause as presented by the Committee of Eleven:

(5) 'Sect. 2. No person except a natural born citizen or a Citizen of the U. S. at the time of the adoption of this Constitution shall be eligible to the office of President; nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the U. S.'
Madison's notes of the Convention .

The proposal passed unanimously without debate which does not mean that the proposal was not discussed, for the convention meetings were conducted in secrecy.  Another reason that there was no debate is probably that the definition that was used of a natural born citizen was of such universal acceptance that it satisfied all laws then know to the Framers.

At the close of the Convention, Hamilton gave to Madison another document which does contain in Article IX provision for the election of a President and the “born a citizen” language for eligibility.  Ferrand wrote that Hamilton gave this “paper” to Madison at the end of the Convention and that Hamilton “would have wished to be proposed by the Convention:  He had stated the principles of it in the course of the deliberations.”  p. 619.   Farrand also wrote that Hamilton’s paper “was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.”  p. 619.  This draft of the Constitution is not to be confused with his sketch of a plan of government (the British Plan) which he read to the Convention on June 18, 1787.

Elliott’s Debates has additional information on this proposed constitution.  He explains:

[...] Continued here.