Attorney Herb Titus, who has taught constitutional law for nearly 30 years and was the founding dean of the College of Law and Government at Regent University in Virginia Beach, Va., is offering a correction to Fox News anchor Bret Baier's explanation of "natural born citizen."
The issue arose this week when Baier posted online his explanation of "natural born citizen" and said that the issue is resolved by federal law. He pointed to 8 U.S. Code, Section 1401, contending all that is required is for the mother to be an American citizen who has lived in the U.S. for five years or more, at least two of these years after the age of 14.
The question arose in the context of concerns he was observing regarding the eligibility of Florida Sen. Marco Rubio, who was born before his parents were citizens of the U.S.
Baier asserted that people born in the U.S., born outside the U.S. to parents who are both citizens or born outside the U.S. to one parent who is a U.S. citizen are "all natural born U.S. citizens."
Titus' takes Baier to task.
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"Bret Baier commits a common error," he wrote in the response posted online at the Article 2 Superpac. "He assumes that 'natural born citizen' means the same thing as 'citizen by birth.' They are not the same. A citizen by birth is one who by constitutional or statutory provision is made or recognized as a citizen based upon where or to whom they were born."
He continued, "Under Mr. Baier's view, a natural born citizen, then, is a citizen of a particular nation only by positive law. If a natural born citizen is defined by statute, as Mr. Baier claims they are, then by statute Congress can take away their natural born citizenship status, subject only to the 14th Amendment's definition of citizenship by birth. And even that citizenship can be taken away by an amendment to the Constitution. Indeed, according to Mr. Baier, no one could have been eligible to be elected president UNLESS Congress passed a statute designating one's citizenship by birth, or until the 14th amendment definition of citizenship by birth was ratified."
The issue has been in the news since Barack Obama campaigned for president in 2008. Questions about his eligibility have yet to be resolved, as he's continued to conceal many personal documents.
The birth documentation from Hawaii that Obama released from the White House last year has been described as a probable forgery by the investigators of Sheriff Joe Arpaio's Cold Case Posse.
And if it's not fraudulent, there are critics who say it proves his ineligibility, as it lists Barack Obama Sr. as the father, who never was a U.S. citizen.
Titus argues the father's citizenship is important.
"A natural born citizen, by contrast, is not dependent upon Congress passing a statute or the constitution being amended. A natural born citizen is a citizen of a specific nation by the law of nature of citizenship. The law of nature of national citizenship is written into the very nature of the universe of nation-states, and is universal as to place, uniform as to person, and fixed as to time. By definition the law governing natural born citizenship exists independent of any human power, legislative or otherwise. That is why 'natural born citizenship' is not defined in the Constitution. Such citizenship exists whether recognized by positive law or not. Such citizenship is God-given. To qualify one must be born to a father and a mother each of whom is a citizen of a particular state in order for the person to be 'natural born' citizen of that state," he explained.
Earlier, when Baier's statement first was posted, Harvard-educated Jerome Corsi, author of "Where's the Birth Certificate?," said Baier wasn't quite on track.
"Baier incorrectly interprets that 8 USC Section 1401 was written to define 'natural born citizen,' as specified in Article 2, Section 1 of the Constitution," he said. "The purpose of 8 USC Section 1401 is to define 'nationals' and 'citizens' of the United States 'at birth.'"
Corsi explained that citizens at birth are not "natural born citizens" under the meaning of Article 2, Section 1.
"Nowhere in 8 USC Section 1401 does Congress make any mention of the term 'natural born citizen' or to Article 2, Section 1," Corsi said.
Baier, who took over the time slot from Brit Hume in January 2009, previously was the network's chief White House correspondent. Prior to that he was national security correspondent, reporting on defense, military and intelligence community issues. He has reported from Iraq 12 times and from Afghanistan 13 times.
He said he posted the information because of the questions being raised about whether Rubio and Louisiana Republican Gov. Bobby Jindal qualify as "natural born citizens."
"This is obviously getting a lot of attention ... so we think we should do a full piece on the show about it … and maybe have a panel of constitutional scholars ... and legal experts to discuss this," he wrote.
"There obviously is a lot of confusion."
He said, "The brouhaha over President Obama's birth certificate – has revealed a widespread ignorance of some of the basics of American citizenship."
"To novices, the distinction between 'citizen at birth' and 'natural born citizen' may be trivial. Under law, the distinction is meaningful and important. A mother who takes advantage of 'birth tourism' to fly from Turkey or China (or any other foreign country) to have a baby born in the United States might arguably give birth to a 'citizen at birth,' under the meaning of the 14th Amendment, extended by 8 USC Section 1401," Corsi said.
"But consider that the mother and child return to China and Turkey and raise the child. The child does not learn to speak English and does not learn anything about U.S. history or culture. Yet at age 35, the child returns to the U.S., spends the necessary years here to meet the residency requirements under Article 2, Section 1, and runs for president."
He continued, "'Natural Born Citizen' is a term of natural law — it specifies that a child must be born in the USA to two parents who were U.S. citizens at birth."
As to Obama's documentation, Arpaio assembled a Cold Case Posse of professional law enforcement investigators who looked into the birth certificate information Obama posted online from the White House.
Their conclusion: There is probable cause that there was forgery in the creation of the document and fraud in its presentation to the public.
There are many who believe that even if Obama was born in Hawaii he wouldn't be a "natural born citizen," as the father listed on his birth documentation never was a U.S. citizen. Barack Obama Sr. left Stanley Ann Dunham to go to graduate school, then returned to Kenya where he served as a government official and married additional wives.
Read the preliminary findings of Sheriff Arpaio’s Cold Case Posse investigation after six months investigating Obama’s constitutional eligibility to serve as president in “A Question of Eligibility,” co-authored by Jerome Corsi and Mike Zullo.
Although Rubio's name is mentioned more than any other as a potential GOP vice presidential candidate, a document found in the National Archives raises questions about whether the popular U.S. senator is qualified constitutionally to serve as president or vice president.
The Petition for Naturalization on behalf of Mario Rubio, the senator's Cuban father, has been retrieved from the National Archives and posted online by the PixelPatriot website, confirming that Marco Rubio was about 4 years old when his parents became U.S. citizens. Mario Rubio was naturalized as an American citizen in 1975, based on the Sept. 9, 1975, date on the petition; Marco Rubio was born in 1971.
Titus also has made a video explaining the issue:
Concerns over the loyalties of the commander-in-chief were raised in a 1787 letter from John Jay to George Washington.
Wrote Jay, who later became president of the Continental Congress and the first U.S. Supreme Court chief justice: "Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen."
In fact, Congress in 1790 defined "natural born citizen" as a child born of two American citizens, but the law containing the definition was repealed several years later.
"The Law of Nations," a 1758 work by Swiss legal philosopher Emmerich de Vattel, was read by many of the American Founders and informed their understanding of law later established in the Constitution.
Vattel specified that a natural-born citizen is born of two citizens and made it clear that the father's citizenship was a loyalty issue.
Explains Vattel: "The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. … In order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country."
Also, in 2008, when the U.S. Senate resolved that Sen. John McCain, R-Ariz., the Republican presidential nominee, was a natural born citizen, it specified that his parents were American citizens at the time of his birth.
The non-binding resolution, co-sponsored by then-Sen. Barack Obama, stated that McCain – born to two American citizens on an American military base in the Panama Canal Zone in 1936 – "is a 'natural born citizen' under Article II, Section 1, of the Constitution of the United States."
The Article II Superpac posted an analysis arguing that the parents of a "natural born citizen" must be citizens at the time of his or her birth. The organization noted that Supreme Court rulings suggest the term applies only to those born on U.S. soil to citizen parents.
Joseph Farah, founder and CEO of WND, also has argued that the definition of "natural born citizen" excludes Rubio.
"Rubio is, quite simply, not a 'natural born citizen' by the accepted legal, English-language standard as it has been known throughout American history. He was born in Florida to two non-U.S. citizen parents," he wrote.
"I know this is not a popular notion among Republicans, just as it wasn't among Democrats when challenges were made to Obama. However, the Constitution should always trump political expediency.
"This is not a 'technicality,' as some might suggest. If we don't adhere to the Constitution on matters as significant as presidential eligibility, then the Constitution ceases to be a meaningful document for guiding our nation. Indeed, it becomes the kind of 'living document' that many liberals have claimed it should be – ever-changing to new circumstances," he said.