Posted by
Mike on Monday, June 20, 2011 12:14:04 AM
http://www.westernperspective.blogspot.com/
It has been said that in order to be a natural born citizen eligible
to serve as president or VP, one must be born of two parents both of whom are American citizens at the time of the child's birth. While DNA testing can be useful in
determining paternity and could therefore be relevant on the question of
eligibility pursuant to Article II, the true test of eligibility lies
closer to home. For this reason, states that require documentary proof
of birth for certification purposes may find themselves faced with a
court challenge.
What are the actual parameters of natural born citizenship? To answer
this question, consider what it would have been like if America had
become a constitutional monarchy rather than a republic. This provides
additional insight into America's relationship with the European
monarchies of the 18th century.
When America began as a nation, each of the thirteen colonies which
became states had separate citizenship standards. Some required birth
within the state, others had differing residency requirements, etc.. At
that time, the European monarchies were part of a feudal system in
which subjects of a sovereign owed a particular fealty or allegiance to
the sovereign. Had America adopted a monarchical system, the same
criteria would then have applied in determining a person's status, a
natural born subject being one owing fealty and allegiance from the time
of birth.
Since no person can serve two masters, nations had to basically agree on
a set of rules determining whether a person was a subject of one
monarch or another at the time of birth. Since every monarch
theoretically has physical domination of a particular realm, it was
recognized that one of the criteria is the locus or place of birth. In
general, a natural born subject has to be born within territorial
jurisdiction of the sovereign, but there are exceptions to this rule
which need not concern us here. Also, Britain had a special rule for
children of a male subject born outside the realm, probably on account
of the great number of British seafarers.
The second criteria for natural born status has to do with lineage. In
the feudal system, the presumption was that all persons born within the
territorial realm are natural born. Because a child owes allegiance to
his father from birth, the allegiance of the father to a particular
sovereign devolves upon the child regardless of where the child happens
to be born. However, in this context we are not concerned with a purely
biological relationship. There must be an actual, real parental bond
between father and child for the allegiance of the child to take effect
in a particular social context. Therefore, if the identity of the
father is uncertain and the mother is not married, the child would be a
natural born subject of the mother's sovereign assuming the child to be
born within the same territory. Even if the father is known to have
been from another realm but not validly married to the mother at the
time of birth, the child would nonetheless be a natural born subject of
the mother's sovereign. This also demonstrates that there was a high
regard for marriage both in Europe and in America at the time.
Finally, even if the child were conceived through an extramarital union so
that the child's father at the time of birth were someone other than the
biological progenitor, the child would still be a natural born subject
assuming the father being validly married to the child's mother, again
assuming birth within the territorial jurisdiction.