Posted on 05/14/2015 8:44:18 AM PDT by Josh Painter
This should not even be an issue any longer, but there are still some out there who didn't get the legal memo.
First, some history:
The origins of the Natural Born Citizenship Clause date back to a letter John Jay (who later authored several of the Federalist Papers and served as our first chief justice) wrote to George Washington, then president of the Constitutional Convention, on July 25, 1787. At the time, as Justice Joseph Story later explained in his influential Commentaries on the Constitution, many of the framers worried about “ambitious foreigners who might otherwise be intriguing for the office.” “Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the American army shall not be given to nor devolve on, any but a natural born Citizen,” Jay wrote.
Washington thanked Jay for his hints in a reply dated September 2, 1787. Shortly thereafter, the natural-born citizenship language appeared in the draft Constitution the Committee of Eleven presented to the Convention. There is no record of any debate on the clause.
To make a long story short, the question boils down to a matter of intent:
While it is possible to trace the origins of the Natural Born Citizenship Clause, it is harder to determine its intended scope—who did the framers mean to exclude from the presidency by this language? The Naturalization Act of 1790 probably constitutes the most significant evidence available. Congress enacted this legislation just three years after the drafting of the Constitution, and many of those who voted on it had participated in the Constitutional Convention. The act provided that “children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural-born citizens.” There is no record of discussion of the term natural born citizen, but it is reasonable to conclude that the drafters believed that foreign-born children of American parents who acquired citizenship at birth could and should be deemed natural born citizens.
In conclusion:
What can we expect if Senator Cruz or another similarly situated candidate runs for president in 2016? Undoubtedly, the controversy will continue with passionate advocates on both sides of the issue. A scholarly consensus is emerging, however, that anyone who acquires citizenship at birth is natural born for purposes of Article II. This consensus rests on firm foundations. First, given Jay’s letter and the language of the 1790 naturalization act, it seems evident that the framers were worried about foreign princes, not children born to American citizens living abroad. Second, the 14-year residency requirement Article II also imposes as a presidential prerequisite ensures that, regardless of their place of birth, would-be presidents must spend a significant time living in the United States before they can run for office.
Concurring:
Two former top Justice Department lawyers say there is “no question” Ted Cruz is eligible for the presidency, in a new Harvard Law Review article that seeks to put to rest any doubt about the Texas Republican. “Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a ‘natural born citizen’ within the meaning of the Constitution,” write Neal Katyal and Paul Clement in an article published March 11. “There are plenty of serious issues to debate in the upcoming presidential election cycle. The less time spent dealing with specious objections to candidate eligibility, the better.”
[...]
The Harvard Law Review article is notable because it is a bipartisan assessment that Cruz meets the Constitution’s requirement that the president be a “natural born citizen.” Katyal was an acting solicitor general in the Obama administration from May 2010 to June 2011. Clement was solicitor general from 2004 to 2008 in the Bush administration and is, perhaps, best known nationally among conservatives for arguing the case against President Obama’s health care law before the Supreme Court in 2012.
Katyal and Clement review the intent and meaning behind “natural born citizen,” going back to the Founding Fathers. The question about citizenship and presidential eligibility has also affected Barry Goldwater, George Romney and John McCain over the years — and all met the constitutional test.
Katyal and Clement conclude in their article:
As Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase “natural born Citizen” in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent — whether in California or Canada or the Canal Zone — is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose. Finally, another bipartisan consensus:
Legal scholars are firm about Cruz’s eligibility. “Of course he’s eligible,” Harvard law professor Alan Dershowitz tells National Review Online. “He’s a natural-born, not a naturalized, citizen.” Eugene Volokh, a professor at the UCLA School of Law and longtime friend of Cruz, agrees, saying the senator was “a citizen at birth, and thus a natural-born citizen — as opposed to a naturalized citizen, which I understand to mean someone who becomes a citizen after birth.” Federal law extends citizenship beyond those granted it by the 14th Amendment: It confers the privilege on all those born outside of the United States whose parents are both citizens, provided one of them has been “physically present” in the United States for any period of time, as well as all those born outside of the United States to at least one citizen parent who, after the age of 14, has resided in the United States for at least five years. Cruz’s mother, who was born and raised in Delaware, meets the latter requirement, so Cruz himself is undoubtedly an American citizen. No court has ruled what makes a “natural-born citizen,” but there appears to be a consensus that the term refers to those who gain American citizenship by birth rather than by naturalization — again, including Texas’s junior senator.
Case closed. Bye bye, birthers,
- JP
Bookmarking; many thanks for the info!
But both subjects have a common root. That common root cannot be both correct and incorrect at the same time. It is either entirely incorrect, or it is entirely correct.
I am of divided mind regarding "Judicial Review". On the one hand it seems reasonable to think that such a thing is implicit in the delegated powers, but on the other hand it seems like an overreach.
*Someone* has to decide if something is constitutional. I would suggests the courts *OUGHT* to be better at it than the Congress, and we certainly don't want that power in the hands of the Executive.
There’s no telling how John Marshall might have ruled after the passage of the citizenship clause of the 14th Amendment. John Marshall was a slaveholder but he had also argued cases for emancipation as an attorney.
He always ruled against the Indians. I also dare say that in those days there was a difference between believing someone shouldn't be a slave and believing that they should be regarded as an equal. Most Abolitionists did not believe this. Even Lincoln made a point to say that he didn't think slaves were his equal.
There’s been 117 years to reverse the Wong ruling with lots of Supreme Courts composed of lots of different configurations. It still stands “stare decisis.”
Why would anyone want to reverse it? The damage it causes is subtle and widely spread, where the pain it could cause if it were reversed would be immediate and would be concentrated on specific litigants for whom the court would have sympathy. Indeed, I think the Wong ruling was more the product of sympathy and teaching those racist Democrats a lesson than any other reason. Plus the court had all that backlash from their Plessey ruling. (Another example where people don't believe someone should be a slave, but don't really believe them to be equal either.)
I am at a loss as to how to respond to this message. Your quotes and examples would see to me to make the exact opposite point which you are arguing. You even quote a part which implicitly says that children born abroad to citizens are "naturalized" by congressional action.
The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.
To make the context even more clear, I'll show you where it says the same thing in Wong Kim Ark.
Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.
If you are going to cite Wong Kim Ark as the legal authority for your position, it specifically says the foreign born children of American citizens can only be naturalized citizens.
Yes, a 3% change. I said a "few points one way or the other." A "few" is at least three.
And this is how I see it as well. However, I wouldn't put it past the legal system to let Obama skate, and then hold Cruz to a much more difficult standard.
You know the media will certainly be spreading doubt as to his eligibility.
The liberal media has been defending Cruz’s eligibility because it justifies Obama.
For example: “Yes, Ted Cruz Can Be Born in Canada and Still Become President of the U.S.”
http://www.theatlantic.com/politics/archive/2013/05/yes-ted-cruz-can-be-born-in-canada-and-still-become-president-of-the-us/275469/
“Top lawyers: ‘No question’ Canada-born Cruz eligible for presidency”
http://onpolitics.usatoday.com/2015/03/16/ted-cruz-natural-born-citizen-birthers/
The anti-birther blogs and web sites are positively giddy about Cruz, Rubio and others because they see the eligibility of those Republican candidates as justifying their position on Obama AND dividing conservatives politically.
They see themselves getting a “two for one.”
The anti-Obama blog “The Birther Report” is vehement in its opposition to Cruz’s eligibility.
More liberal media defense of Ted Cruz’s eligibility.
From National Public Radio:
“Is Ted Cruz Allowed To Run Since He Was Born In Canada?”
http://www.npr.org/sections/itsallpolitics/2015/03/23/394713013/is-ted-cruz-allowed-to-run-since-he-was-born-in-canada
Two blogs that were the earliest to defend Obama’s eligibility, snopes.com and factcheck.com Both say Cruz is eligible.
http://www.snopes.com/politics/cruz/canada.asp
http://www.factcheck.org/2015/03/ted-cruzs-presidential-eligibility/
The liberal media is largely basing its position on Ted Cruz on the Harvard Law Review article written by two former U.S. Solicitor Generals.
Neal Katyal was the federal government’s top lawyer for the Obama Administration and Paul Clement held that position for the George W. Bush administration.
http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/
If you want to ask yourself your own questions and then answer them, that’s fine. But don’t start screaming at me that you’ve answered my actual question when you clearly haven’t.
The reality is you don’t know what year Rafael Cruz Sr became a Canadian citizen.
I say that they are the unfortunate loser of that particular life lottery.
Ted Cruz would make a great Attorney General in someone else's Cabinet.
-PJ
I am of the opinion that greater constitutional threats exist from electing anyone else. As Lincoln said:
By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb.
Also they are all pro open borders and amnesty too. The whole issue conforms to Liberal orthodoxy. They don't believe in nationalism anyways.
The anti-birther blogs and web sites are positively giddy about Cruz, Rubio and others because they see the eligibility of those Republican candidates as justifying their position on Obama AND dividing conservatives politically.
Of that I have no doubt. I also have no doubt that you have spent quite a lot of time at these websites. I think you have been using them as a cite resource for a very long time.
The anti-Obama blog “The Birther Report” is vehement in its opposition to Cruz’s eligibility.
If one insists on standing on principle, then one has to be consistent. You can't argue one way against Obama, and a different way in favor of Cruz. By the standards of any average citizen, Obama would have a stronger claim (given what is asserted) to citizenship than would Cruz.
My position is simple. Since the Democrats aren't compelled to obey rules, we shouldn't either, and there are more important issues at stake, especially when no authority gives a rat's @$$ about the truth.
I didn't know he *HAD* become a Canadian citizen. Is this true?
“Of that I have no doubt. I also have no doubt that you have spent quite a lot of time at these websites. I think you have been using them as a cite resource for a very long time.”
This discussion needs to conclude.
Why start off a new administration on Day 1 with the cloud of unconstitutionality hanging over it? Take that distraction off the table immediately, and create the atmosphere of order and lawfulness.
I'm sure we can find a strong executive leader who would put Cruz to great use at Justice to de-politicize it and rebuild its credibility. That job has Cruz' name all over it.
By all the definitions of NBC that I've endorsed, Cruz is not a natural born citizen - he is not the Posterity of We the People. He is not the citizen child of two citizen parents at the time of his birth. There are other ways for him to add tremendous value.
-PJ
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