Why Marco Rubio Would Be A Bad VP Pick: (1) He's IneligibleTo Be President

Jim Antle recently wrote an interesting column in the American Spectator about why Mitt Romney needs to win the love of American conservatives, and wonders whether Romney can.  Antle got me thinking about whom Romney should pick as his running mate. 

Antle mentions Rep. Paul Ryan of Wisconsin as a possibility.  I’m not sure I agree.  While Ryan is sound on the financials, he is still quite young and looks wet behind the ears.

Over the last few months, I have heard a lot of neocon-style gushing over brand-new Senator Marco Rubio of Florida.  Jeb Bush would vehemently disagree with me, but I think picking Rubio would be a terrible mistake.  He is even younger than Ryan and is definitely wet behind the ears.  Let’s examine this latest Latino darling of the GOP before looking at a man who would materially improve Mitt Romney’s presidential prospects.

First and most importantly, Marco Rubio is not constitutionally eligible to serve as either President or Vice-President of the United States.  Rubio is not a “natural born Citizen” of the United States, as the Constitution requires both the President and Vice-President to be.  Should Republicans also be thinking about Louisiana Gov. Bobby Jindal for the office John Nance Garner so valued, neither is Jindal a natural born citizen, and for the same reasons as Rubio.

The U.S. Constitution’s requirements for eligibility to the offices of President and Vice-President are deliberately more stringent than mere U.S. citizenship.  That is true even when we interpret the Citizenship Clause of the 14th Amendment strictly, as its drafters and ratifiers intended.  The Citizenship Clause is not an automatic grant of U.S. citizenship simply for being born in the United States. 

Of course, applying the eligibility requirements correctly is all the more important now that the U.S. government brazenly ignores the phrase “and subject to the jurisdiction thereof” that is plainly part of the Citizenship Clause and grants U.S. citizenship automatically to any child born in the United States – no matter what his parents’ citizenship may be and even if they are in America illegally.

Eligibility to hold either office is predicated on a candidate's being a natural born citizen within the meaning of the U.S. Constitution.  Article II, Section 1 of the Constitution lists three requirements with which a candidate must comply to “be eligible to the office of President”.  The requirement to be a natural born citizen is the first, and presumably most important, of those requirements.  At his birth, neither of Rubio's parents were U.S. citizens, and there is no legitimate constitutional argument that one can become a natural born citizen retroactively. 

To repeat: the constitutional natural born citizen requirement for eligibility is more restrictive than merely being a U.S. citizen.  That greater restriction is no accident.  The Founding Fathers drafted Article II, Section 1 to minimize the risk of having a President with divided loyalties or loyalties to any nation other than the United States.

In addition to Rubio’s patent ineligibility for the presidency because he is not a natural born citizen as required by Article II, Section 1, it is doubly pointless to nominate Rubio for the vice-presidency because the Twelfth Amendment to the Constitution explicitly has this to say: “[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

What, then, is a “natural born Citizen”?  Article II, Section 1 does not provide a definition; no doubt its drafters considered its meaning obvious.  The plain meaning, to the Founding Fathers, is a child born of two citizens of the country in question: a person naturally a child of that nation and polity and someone not naturally susceptible to divided loyalties - which were rightly a great concern of the Constitution's drafters and ratifiers, and quite obviously still should be a great concern of Americans today.

While the U.S. Supreme Court has said little about what makes a person a natural born citizen of the United States, it has addressed the question in the Court's opinion in Minor v. Happersett (1875), as follows:

The Constitution does not, in words, say who shall be natural-born citizens.  Resort must be had elsewhere to ascertain that.  At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.  These were natives, or natural-born citizens, as distinguished from aliens or foreigners.  Minor v. Happersett, 88 U.S. 162, 168. (emphasis added)

The Minor opinion is unanimous, and it is written by Chief Justice Morrison Waite.  A unanimous opinion from the pen of the Chief Justice is the strongest judicial statement the Supreme Court can make.

The analysis in Minor is the most clear definition the federal judiciary has offered.  The natural-born citizen is the native of the United States; Marco Rubio, although born in the United States, is the son of two Cubans and not in this sense native to America.  His parents' naturalization well after his birth cannot retroactively change that fact.  The test is at birth.  The same analysis applies to Bobby Jindal, who while born in the United States was born to two Indians.  Again, his parents’ subsequent naturalization does not change the fact.

As if anticipating today's eligibility controversies, Chief Justice Waite continues:

Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of the parents.  As to this class there have been doubts, but never as to the first.  Ibid. (emphasis added)

The Court thus acknowledges that some may have doubts about whether children born in the situation of both Rubio and Jindal might be natural born citizens.  But in acknowledging the existence of a minority view on the question, Waite, C.J., is careful to place that acknowledgment after his statement of the common law understanding of who is a natural born citizen and the distinction between natives (natural born citizens) and aliens or foreigners, which the unanimous Supreme Court pretty plainly considers dispositive of the question. 

It would be foolish, given the dynamics of this election and the issues in play, for the Republicans to muddy the waters by choosing a running mate for Romney who would not constitutionally be eligible for either office.