Posted on 01/13/2016 8:00:06 AM PST by conservativejoy
IS TED CRUZ A "NATURAL BORN" U.S. CITIZEN?: According to Widener law school's Mary Brigid McManamon, who has an oped in the Washington Post today, the answer is "no." Her reasoning is a bit shaky:
On this subject, the common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are "such as are born within the dominions of the crown of England," while aliens are "such as are born out of it." The key to this division is the assumption of allegiance to one’s country of birth. The Americans who drafted the Constitution adopted this principle for the United States. James Madison, known as the “father of the Constitution," stated, "It is an established maxim that birth is a criterion of allegiance. [And] place is the most certain criterion; it is what applies in the United States." ...
Article I of the Constitution grants Congress the power to naturalize an alien.... But Article II of the Constitution expressly adopts the legal status of the natural-born citizen and requires that a president possess that status. ... Congress simply does not have the power to convert someone born outside the United States into a natural-born citizen.
McManamon's quotation from Blackstone's Commentaries purposefully omits key language. Specifically, Blackstone stated:
Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance [sic] or as is generally called, the allegiance of the king; and alien such as are born out of it.
The key to this passage is the concept of "allegiance"-whether the individual has been born with allegiance to the king, or not. Individuals born with allegiance to the sovereign are "natural-born" subjects; those lacking such allegiance are not. It is not, as McManamon implies from her selective portion, a question merely of being born within the geographic confines of the country. McManamon's citation to the James Madison passage confirms this, as Madison acknowledges that "place is the most certain criterion," but he is not suggesting that it is the only criterion, as he states unequivocally that the "established maxim" is that the ultimate criterion is "allegiance," of which the place of birth is but one (albeit "certain") criterion.
Article I, section eight gives Congress the authority to "establish a uniform rule of Naturalization," and thus identify, by statute, those who must to go through a naturalization process to obtain U.S. citizenship. Those citizens who do not need to go through the naturalization process are "natural born" citizens. As former Solicitors General Neil Katyal and Paul Clement have recently noted in the Harvard Law Review Forum,
All the sources routinely used to interpret the Constitution confirm that the phrase "natural born Citizen" has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States...
The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law and enactments of the First Congress. Both confirm that the original meaning of the phrase "natural born Citizen" includes persons born abroad who are citizens from birth based on the citizenship of a parent.
McManamon asserts that Katyal and Clement behave in an "unforgivable" fashion by "equat[ing] the common law with statutory law." But they do no such thing. Instead, Katyal and Clement correctly note that the longstanding British legal understanding–as evidenced both by its common and statutory law–was that children born abroad to British subjects were, themselves, "natural born" subjects at birth, without the need for naturalization proceedings. As Randy Barnett succinctly put it,
England had numerous and changing legal rules governing exactly who was and who was not a "natural born subject," which can be used to muddy the waters. But one consistently applied rule is particularly germane: The offspring of the King were natural born subjects of the King regardless of where they were born, whether on English territory or not.
As We the People–both individually and collectively-posses the sovereignty in the U.S., our offspring are the functional equivalent of he King's offspring in England-i.e., 'natural born" citizens of the U.S., regardless of where they are born.
Indeed, by the time of Blackstone's Commentaries (published beginning in 1765), Blackstone himself acknowledged that the law of England had evolved to recognize "that all children, born out of the king's ligeance [sic] whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception."
McManamon also criticizes Katyal and Clement for placing "much weight" on the Naturalization Act of 1790, which stated that "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 ..."
Assuming that modern Equal Protection Clause jurisprudence would not permit any constitutional distinction of children based upon fathers versus mothers who are U.S. citizens (Cruz's mother was a U.S. citizen at his birth; his father was not)-and there is no legal reason, today, to think that a mother who is a U.S. citizen owes less "allegiance" to the U.S. than would the father–the law existing at the time of the U.S. founding suggests that, in interpreting Article II's phrase "natural born citizen," children born abroad to U.S. citizens should be considered "natural born."
McManamon dismisses this evidence of the founding generation’s understanding of "natural born" by asserting:
The debates on the matter reveal that the congressmen were aware that such children were not citizens and had to be naturalized; hence, Congress enacted a statute to provide for them. Moreover, that statute did not say the children were natural born, but only that they should "be considered as" such.
This is specious argument. The 1790 Act reveals that the members of Congress–many of whom were heavily involved in the writing and ratification of the Constitution-understood that children of U.S. citizens who were born abroad should be “considered†as "natural born" in the sense that they did not need to undergo any naturalization process and were accordingly legally entitled to be considered U.S. citizens at the time of their birth–the same as an individual born within U.S. borders. The fact that Congress memorialized this common understanding in the 1790 Act does not, in any way, suggest that such children born abroad "had to be naturalized"; quite the contrary.
In short, while Trump and Harvard Law prof Laurence Tribe are correct that the U.S. Supreme Court has not definitively grappled with the full meaning of "natural born citizen," the available evidence suggests that if/when the Court ultimately must grapple with it, the evidence points strongly in Cruz's favor.
Glad to see Teddy responding. Time for his super PACS to carpet bomb DT.
The Low-Information Voters already heard the message: Cruz is not eligible for President, but Obama is. Cruz will probably begin to fall in the polls soon.
And then, the Establishment Uniparty can begin to attack Trump anew, libeling him a crazy old man.
When it's all over, America will have her first communist President.
I am going to have to break down and do a side by side comparison of the First and Fourth Congress.
All of these pundits want to ignore that JAMES MADISON REPEALED THAT LAW AND TOOK OUT THE WORDS ABOUT NATURAL BORN CITIZEN
All of these pundits want to ignore that JAMES MADISON REPEALED THAT LAW AND TOOK OUT THE WORDS ABOUT NATURAL BORN CITIZEN
It's cute that you think facts and reasoning will persuade anyone. :)
I used to be like that too.
Foreign born of one American citizen. Yeah, that sounds like a Natural Born Citizen.
Just about anybody could be POTUS!
All because Trump talked about Cruz’s eligability.
I’m sure you think the RAT’s are so nice, they won’t bring
it up if Cruz is the nominee.
Better Cruz deal with it now, than ignore the issue.
Best time for Cruz to find a great response to it is now.
And he will be prepared if he is the nominee.
All that is asked is a fair and lawful verdict w/o ANY politics whatsoever. Sen Cruz - the ball is in your court. Serve it!!
ROFL.
Yeah, you’re right
I think you have it right. We MUST have a strong Republican candidate in this race, and I feel it must be Trump because: Ted Cruz, a fine man, would be dumped on big time because of his citizenship issues if he got the nomination and might not survive; ditto anchor baby Rubio, who additionally would be smeared for suspected skirt chasing and mis-using Republican party funds to finance his forays with the lobbyist, which personal smears have never been addressed by the candidate. I don’t think any of the remaining nominees, especially Bush, could beat the Dem. nominee, so we must rally behind Trump. I would love to see Cruz in Trump’s administration as Atty General, or Supreme Court, or wherever his interests may lie.
This won’t stop the FR DUmmies from posting ad infinitum that Cruz is not a citizen. Originalist constitutional scholars say he’s natural born. Leftist say orginalist interpretation says he’s not. Conservatives don’t accept leftists’ interpretation of the constitution.
Of course this is ‘settled law’. That is why the Donald ‘inferred’ and asked the uninformed style question “Is he?” for plausible deniability that he was directly accusing Cruz of not being eligible.
This will not go anywhere within any court and Trump knows it.
Grayson can file a million suits, all will be tossed on lack of STANDING. Trump is smart enough to know that.
The only ammo Trump had to counter Cruz’s rise is this ‘none issue’ and Trump knows it, even though his lemmings may not be smart enough to know it.
Cruz should respond as he has and not dirty himself more by attacking Trump, not that Cruz needs my or our advise.
Cruz fought a much nastier opponent in David DoWorst and wiped the floor with him in the Primary runoff.
Most folks call me crazy but..FWIW, here’s the Cletus Interpretation for NATURAL Born citizen [after several readings of the Founders writings and The Federalist Papers]:
A child born of 2 US citizens (either natural-born or immigrant/nationalized) and ^either^ on US soil - or while those same parents are abroad and in the public-service of the USA.
No more...no less makes an NBC.
The emmaculation of Obamugabe lowered that standard and we are...simply...STUCK with it.
Legal Precedent is a Bee-Otch.
Flame away.
"I was born in Canada while my dad was working there. That's the same as any American kid whose parents were living abroad because they were in the military, or working in business or the State Department, or maybe even just travelling. Does anyone really want to suggest that military kids, State Department kids, or the children of business people on an overseas assignment are ineligible to run for President?"
Since everyone who was a citizen at the time of adoption is dead we can remove the grandfather clause wording. We are left with “No Person except a natural born Citizen [...] shall be eligible to the Office of President;”
Why does the Constitution speak of “citizens” and separately of “natural born citizens”? Why is the word “natural” inserted? It is a matter of allegiance.
A person can be a “citizen” if they were citizens or subjects in some other country first but have come here and met the naturalization requirements. Also, if one is the offspring of a citizen and a non-citizen, then one is a US citizen. However, in both these cases it can be argued that the person might choose allegiance to their former country or to the country of the foreign-born parent or at least the allegiance might be considered divided. That is, there is no natural allegiance of the offspring to one or the other parent’s country. It is this divided or alienated allegiance that the Constitutional provision is designed to prohibit.
If, however, both of one’s parents are themselves US citizens, then one is a “citizen” as well as a “natural born citizen”. The “natural born citizen” is one who at birth has no natural allegiance to any other country and the Framers felt could be trusted to be loyal to the US and not act as a foreign agent. [footnote: Also, in their time, the rules of royal succession held sway throught much of the world and the Founders wished to forstall any potential claims by the crowned heads of Europe or their scions to sovereignty in the US.]
Note that native born is not the same as natural born. Native born simply refers to the place of one’s birth, i.e., one’s nativity. The term does not speak to the legal circumstances of a birth, merely to its location.
James Madison could rise from the dead, stand in the rotunda of the US Capitol and proclaim Cruz’s eligibility and you’d still have FReepers shouting about it. In fact, they’d probably claim that without Washington’s notes, Franklins assurances, or Hamilton’s opinions, you can’t be sure Madison really knew what the passage meant.
There are two tracks here, one legal and the other involves a broader concept of allegiance:
1. In some countries, citizenship by lineage flows through only the father. In some others, only through the mother. In yet some other countries, either but only one (the person must make a choice). In yet others, either and a person could be a natural-born citizen of two countries. In terms of citizenship by lineage, ours is in the last category. So is the UK. Therefore, Trump is a natural born dual citizen of the UK and the US, although he has never acted on his UK citizenship. He is a natural born citizen of the US for three reasons (his mother, his father and his place of birth). He is a natural born citizen of the UK because the UK allows dual citizenship, and so his mother upon naturalizing as a US citizen did not lose her UK citizenship. But, Trump’s UK citizenship has laid dormant for so long, it’s not an issue. Nevertheless, he should renounce it, like Cruz has renounced his Canadian citizenship, so as to clarify that his allegiance.
2. There is the issue of being “international” versus being “American.” Does the person have an American born wife, like Cruz, or a foreign born wife, like Jeb Bush, Marco Rubio and Donald Trump? Does he have international investments in places like Panama, Brazil, Scotland, Turkey and the United Arab Emirates? Can you be sure that a person who is so international will always put America first, or will have a conflict of interest when a decision affects his mother’s homeland, his wife’s homeland, and all his many businesses and business partners?
3. Or, is all the stuff so much grist for the mill? Just so much razzle-dazzle, and what does this say of the opinion of Trump of his followers?
Well put.
It’s sad to see people who claim to abide by the Constitution shred it when it goes against ‘their guy.’
Cruz supposedly admitted years ago what NBC meant - both parents citizens, of the soil.
A tape will pop up of this at some point.
How far are we from the election?
Sadly, what you say is true.
The problem is that federal courts cannot give advisory opinions and Cruz cannot bring suit against himself. The only person who has standing to do that is a candidate. Trump is the only candidate making it an issue. Trump should take it to court. Put up or shut up.
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