Tulsi Gabbard “Birthers” Challenge Her Citizenship Rights

The goal of first time presidential candidates is to become a nationally known household name. The news media reports Tulsi Gabbard took a giant step toward that goal on July 31.

Two days later, not one but two August 2 commentaries questioning her eligibility to be President appeared on a popular and respected U.S. territorial affairs website.

Not a “natural born” citizen

Opponents of her candidacy claimed combat zone military veteran and Congresswoman Gabbard can’t be President. The misleading argument made was she’s not a “natural born citizen” because she was born and became a citizen outside a state in the U.S. territory of American Samoa:

“Tulsi Gabbard’s citizenship is wholly statutory. As such, she’s a ‘naturalized’ citizen…not Constitutionally eligible to be either President or Vice-President…those born in US territories don’t receive US citizenship under the 14th Amendment’s citizenship clause…her citizenship derives from Congress’ Article I Sec. 8 powers which only grant ‘naturalized’ citizenship.”

All legal process for acquiring citizenship can be referred to as “naturalization.” But there simply is no prevailing legal authority confirming statutory citizenship comprises a class of “naturalized” citizenship excluded presidential qualification under Art. 2, Sec. 1.

Among other anomalies, that would mean only 14th Amendment citizenship based on birth in a state is “natural born citizenship” under Art. 2, Sec. 1 of Constitution.

But for seventy-nine years between the ratification of the U.S. Constitution and adoption of the 14th Amendment in 1868 there was no form of constitutionally defined or conferred citizenship, the very reason the 14th Amendment was adopted.

Statutory citizenship

Before 1868 all U.S. citizenship was statutory. Under its “naturalization” power Congress adopted both citizenship and nationality laws defining who was a citizen, as well as who was not and how non-citizens could be “naturalized” as Americans.

That included birthright citizenship that came from birth on U.S. soil and through the blood from U.S. citizen parents. Thus, under the Naturalization Act of 1790:

“The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”

Every President and Vice President between 1789 and 1868 had to qualify as a “natural born citizen” under any applicable federal and state statutory citizenship and elections laws. If statutory citizenship is disqualifying Tyler, Polk, Fillmore, Pierce, Buchanan, Lincoln and Johnson could not have served.

Conversely, all Presidents born after 1789 who served before the 14th Amendment was adopted in 1868 were qualified based on statutory law. As a matter of legal logic it follows that statutory birthright citizenship conferred under Art. I, Sec. 8, Cl. 4 after the 14th Amendment also constitutes natural born citizenship for purposes of Art. 2, Sec. 1.

The 14th Amendment did not repeal Art. I, Sec. 8, Cl. 4 or limit the power of Congress to confer birthright citizenship on persons not born in a state under the 14th Amendment. That includes birth outside a state to a U.S. citizen parent as provided by Congress under 8 USC 1401.

Birthright citizenship

That includes 8 USC 1401(e) as it applies to Tulsi Gabbard. The fact that children born in America Samoa to non-citizen national parents are nationals not citizens is irrelevant. Since one of her parents was a U.S. citizen, Tulsi acquired U.S. birthright citizenship.

It would be an unintended consequence in establishing constitutional citizenship in 1868 to prevent Congress from ensuring under Art. I, Sec, 8, Cl. 4 that the child of a U.S. parent born outside the U.S. could not serve as President.

The misguided Gabbard birthers pose a scenario of children with statutory birthright citizenship labelled “naturalized” being required to apply for “naturalization” to acquire citizenship. That would make federal law conferring citizenship “at birth” meaningless.

It would disqualify from the presidency tens of thousands of children born to Americans serving overseas in the armed forces, in diplomatic posts, or in business, sports, science the arts. In reality such children are legally U.S. citizens at birth, and have a right to a U.S. passport based on a birth certificate or other documentation.

Gabbard is doing just fine running her own campaign, without needing this to be an endorsement. The preceding is simply a defense of her right as a citizen born in a U.S. territory to run for President.

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