WASHINGTON — Unable to prevent Barack Obama from becoming president, rigid followers of the Constitution have turned their attention to another young, charismatic politician many think could one day occupy the White House.
The birthers are calling for U.S. Sen. Marco Rubio, the budding Republican star from Florida.
"It's nothing to do with him personally. But you can't change the rules because you like a certain person. Then you have no rules," said New Jersey lawyer Mario Apuzzo.
Forget about allegedly Photoshopped birth certificates; the activists are not challenging whether Rubio was born in Miami. Rather, they say Rubio is ineligible under Article 2 of the Constitution, which says "no person except a natural born citizen … shall be eligible to the Office of President."
The rub is that "natural born citizen" was never defined.
The birthers rely on writings at the time of the formation of the republic and references in court cases since then to contend that "natural born" means a person born to U.S. citizens. Rubio was born in 1971 at Cedars of Lebanon Hospital, his office said, but his parents did not become citizens until 1975.
"Marco Rubio was born a Cuban citizen via his parents," screams a headline on a blog by birther Charles Kerchner, who obtained copies of the naturalization petitions by Rubio's parents in May, igniting talk that is spreading across the Internet.
Kerchner said Rubio is no different from Obama, who even if he was born in Hawaii (which he doubts) was not born to two U.S. citizens. Obama's father was a Kenyan national. The birthers say Louisiana Gov. Bobby Jindal, whose parents are from India and were not citizens at the time of his birth, is also unqualified.
Rubio, whose national ascent has been propelled by a tea party that demands absolute fealty to the Constitution, shrugged off the issue. "The price of our freedom and our liberty is that people can go out and spend a lot of time on stuff like this," he said. "For us, the more important thing is to focus on our job."
While Rubio denies higher ambitions, Republicans are salivating for him to join the ticket in 2012, and many think he will run for president in the future. What seems a fringe issue today could blow up, like it did for Obama.
"We need the court to finally adjudicate this issue, who is a natural born citizen," said Orly Taitz, a California dentist and lawyer and the most prominent birther. Taitz has a lawsuit in the 9th U.S. Circuit Court of Appeals challenging the authenticity of the long-form birth certificate Obama released in late April in an attempt to quell a growing firestorm. The suit also seeks clarity on Article 2 language.
Taitz said in an interview Wednesday that she believes Rubio is ineligible to be president, though she several times resisted answering a "hypothetical."
Birthers rely on various passages to back up their argument. One is the treatise The Law of Nations by Swiss philosopher Emer de Vattel, which they say influenced the founding fathers. "The natives, or natural-born citizens, are those born in the country, of parents who are citizens," Vattel wrote.
They also cite the U.S. Supreme Court, which in the 1875 case Minor vs. Happersett, used the term "natural born citizen" in reference to persons who were born in the United States, of U.S.-citizen parents.
"The arguments aren't crazy," said Georgetown law professor Lawrence Solum, an expert in constitutional theory. But, he added, "the much stronger argument suggests that if you were born on American soil that you would be considered a natural born citizen."
Solum said that became clearer with the 14th Amendment, which conferred citizenship on former slaves born in the United States (now a contentious issue involving the children of illegal immigrants.) Birthers say the amendment fortifies their case because it does not use "natural" born.
"It's a little confusing, but most scholars think it's a pretty unusual position for anyone to think the natural born citizen clause would exclude someone born in the U.S.," said Polly Price, a law professor at Emory University in Atlanta who specializes in immigration and citizenship.
Price said natural born was likely drawn from the concept that anyone born in what was once a colony was considered a subject and parental status was not a factor.
But there is sufficient muddiness to fuel the birthers, many still angry with the Republican establishment for not taking their case against Obama more seriously. Rubio was among them, saying he did not think it was an issue.
"The other shoe has dropped," conservative figure Alan Keyes said on a radio program last month. "Now you've got Republicans talking about Marco Rubio for president when it's obviously clear that he does not qualify. Regardless of party label, they don't care about Constitution. It's all just empty, lying lip service."
Kerchner said he decided to check out Rubio after hearing so much buzz about him as a vice presidential candidate. He said he contacted Rubio's office to inquire about his citizenship status at birth and was given the brush off.
So Kerchner got in touch with the National Archives in Atlanta, which had the naturalization petitions for Rubio's father, Mario, and mother, Oriales. The documents, independently obtained by the St. Petersburg Times on Wednesday, show they sought and were given citizenship in 1975.
"Sen. Rubio should stand up for the Constitution and speak out about this and say that as much as he'd like to run someday for those offices, he is not constitutionally eligible to run for president or VP," Kerchner wrote on his blog. A piece followed in World Net Daily, a repository of right wing thought.
Kerchner said the records revealed another truth: Rubio's parents came to the United States in 1956 — about three years before Fidel Castro took over. He accuses Rubio of embellishing his narrative as the son of Cuban exiles, a powerful tale he has used in his rapid climb in politics.
"Their history is much more complex," Rubio said.
His parents, who arrived with immigration visas, were prepared to live in the United States permanently but held out hope that the situation in their homeland would improve, Rubio said. Over five years, they visited Cuba several times. In 1961, Mrs. Rubio returned with her son Mario and infant daughter Barbara while the elder Mario Rubio remained in Miami wrapping up family matters.
"Within a few weeks of living there, it became clear to them that Cuba was headed full speed towards Communism," Rubio's office said. "They returned to the U.S. in late March 1961. They never again returned to Cuba."
Rubio said he's not sure why his parents waited so long to apply for citizenship. But he said describing their plight as exiles is appropriate. "Anyone who can't return to their natural country is an exile, if you can't return for political reasons."
Asked if he thought he was eligible to be president, Rubio demurred. "I'm not going to answer that because I'm not thinking about it. All I care about is my qualifications to serve in the Senate."
But his office says yes, he considers himself a natural born citizen.
Correction: Marco Rubio's parents came to the United States about three years before Fidel Castro took over in Cuba. An earlier version of this story was incorrect on the timeframe.