Is Ted Cruz a 'natural born Citizen'? Not if you're a constitutional originalist.

*He* preaches that we have to respect the original meaning of the document. This goes along with the *real* intent of ‘freedom of religion’ and the 2A.

These are HIS values. HIS.

And mine. And all Tea Partiers. It’s the root of conservationism.

This is exactly what the whole Birther kerfuffle was about. Whether or not we believe that Obama is legit, it’s a vital argument.

http://www.politifact.com/texas/statements/2015/mar/27/facebook-posts/facebook-meme-says-ted-cruz-flip-flopper-president/

In 2012, Cruz was pretty confident that Obama wasn’t qualified.

Um, I didn’t bring up the Girardoni, because it wasn’t relevant to my point. And I never said the term “arms” doesn’t NOW include semi-automatic pistols. It clearly does.

But those didn’t exist in 1788. You are including them because they belong to the class of things called “arms.” I even agreed with you that this was right. But only because you are allowing evolution of what is included under the term “arms.” That’s fine. I agree with that.

But if you grant evolution to “arms,” you have no rational basis for rejecting the evolution of other terms defined outside the Constitution, such as “natural born citizen,” especially when that evolution is driven by a more consistent application of natural rights, in particular, the natural right of mothers to convey citizenship to their children.

BTW, I noticed you didn’t take me up on my proposed thought experiment. Do you think Thomas Jefferson would have allowed tactical nuclear weapons under the general heading of “arms?”

Peace,

And my point is that no evolution of the term "arms" occurred. They had pistols; we have pistols. They had rifles; we have rifles. They had semi-automatics; we have semi-automatics. And, yes, they had bombs, just as we have bombs. But, "arms" meant to them exactly what it means to us. The Founders specifically acknowledged our God-given right to "bear arms"; and that is to possess our own firearms, to be skilled in their use, and to be prepared to raise our firearms and carry them into battle at a moment's notice in minuteman fashion to defend our persons and properties. Nothing has changed.

So to answer your question written another way, was it the Founders original intent that the militia members bear their own tactical nuclear weapons into battle in minuteman fashion? I do not believe that was case. The concept of tactical nuclear weapons that I possess is not such that citizens can train with them privately so as to be skilled in their use and be prepared, or able, to carry them into battle at a moment's notice. As such, they defy original intent. I think it's an open-and-shut case. Should such a case ever make its way to the Supreme Court (because someone was arrested while training at home with tactical nuclear weapons for militia use), then I believe the Supreme Court should not duck or hide from that issue like cowards. They should adjudicate it and express the original intent of the term. It's their job.

Likewise ... no evolution of the term "natural born citizen" has occurred -- or is even permissible outside of the Constitutional amendment process. They had dual citizens; we have dual citizens. They had children born out of wedlock; we have children born out of wedlock. They had anchor babies; we have anchor babies. Until such time as the Congress amends the Constitution, the original intent of that term stands as well. And if the question of original intent regarding that term makes its way to the Supreme Court because someone of questionable eligibility (Obama, Cruz, McCain, Rubio, Romney, Jindal, etc) seeks office, then I believe the Supreme Court should not duck or hide from that issue like cowards either. It's their job to rule on these matters.

I don't think his voters will have the time or mistrust to doubt his claim that he is NBC because he wasn't naturalized. IOW, I don't see him losing much support. He can play a sort of "victim" card, that the detractors are crackpots, etc. I am very confident that will work, even though it is fundamentally dishonest.

I tell you truthfully that I am Cruz supporter. I'm borderline "groupie" material. And, if he is the nominee, I have committed to voting for him as I feel the time for revolution, in a sense, is overdue. I trust Cruz will provide just that. And, I confess, the schadenfreude of our ineligible candidate dismantling the achievements of their ineligible candidate would be delicious.

But I am also a proud birther (and was under the impression seven years ago that Cruz was as well, though significantly less vocal and considerably more eloquent when expressing it). I will have a difficult time in the primary choosing Cruz over Trump when I know that Cruz has a Constitutional issue in play. Even today I am "undecided" where my loyalties will fall on primary day. And that hurts Cruz at least here in Wisconsin.

If Cruz presses for litigation himself (well-timed litigation as you say for "de facto official" reasons) then I will feel comfortable that Cruz is not a "pretend" Constitutional authority like Obama. That would make the primary decision easy for me.

But as his campaign resorts to "nothing to see here", which invariable becomes outright ridicule later (as you say "crackpots"), I am left to wonder if I have not been played. And I don't like being played. Having a genuine dispute of the material facts among conservatives going in, does not bode well for when the democrats join the fray. I think it's going to be much more of a circus than you think. But we'll see.

Thank you for the pleasant discourse!

Your acceptance of the evolutionary quality of natural born citizenship disturbs me. Unlike weaponry and arms, the components of personhood and birth have not changed since the framing of the Constitution. Just as in their day, all men/women today are born in a single place and born of two parents (although potentially that may change one day).

Are you a proponent of anchor-babies? That our citizenship should be defined exclusively by place of birth? It is hard for me to believe the framers would adhere to that judgment. And hence we have to believe they had some standard that was greater than just nominal “citizenship” when setting forth the requirements for President. What exactly do you think they expected to define the minimum requirement? What “new” thinking or “technologies” exist today that would impact a different interpretation of NBC from the original framers?

No, I am not a proponent of anchor babies. Anchor babies do not have even one citizen parent from whom to inherit citizenship. I am, like the Founders, a proponent of natural rights, including the right of heredity. It's just that I see no rational basis for limiting that right of heredity to the father. Both persons are made in the image of God, and have been created equal with respect to natural rights. I believe whoever in that founding generation deprecated that right of heredity in women was falling short of the theory of rights they were espousing.

Do you deny that a particular historical theory of natural rights can never mature? Dred Scot treated black persons as nonpersons, as property. Would you not want that to evolve? Roe v Wade treats unborn persons as disposable disfigurements. I think we're all pulling for some evolution there. And of course Kelo, a disastrous assault on our natural rights in property.

The problem is, the technical standards for weapons and the natural law standards for citizenship are both subject to improvement, because we are finite beings and always have room to grow in our understanding. I do not know why this intimidates folks so much. To me it is one of the happiest features of being a human being. Only God is infinitely perfect. The rest of us can grow forever.

Also, think about this. One of the really well-hidden phenomenas in this Cruz birther debate is the role of positive law. Back around the time of Oliver Wendell Holmes, natural law was in effect evicted from American jurisprudence. Not all at once, but it was the beginning of the end for a lot of legal thinking that was based on natural rights. In it's place there arose this belief that rights are man-made, whatever the law says is the truth, until a new truth elbows it's way into the system. These are the folks who gave us the "Living Constitution." By that, what they really mean is that Nietszche was right, there is only one truth, the struggle for power. Obama is a Nietszchean, officially, BTW. He brushes past the Constitution like it was toilet paper because its not useful to his quest for power, except on occasion when he can use it as a tool to advance his own promotion.

How does this figure into the birther debate? The legal positivists do not believe in God-given natural rights. "Natural born" as a function of natural rights is meaningless to them. They would dissolve all questions of citizenship into pure statutory determination. You can actually pick up on this when they present their defense of either Cruz or Obama. With no natural law in play, to them, why not include "anchor babies?" Citizenship is a made-made construct and we can do anything we want to with it, so they would say. They are playing the uninformed on this matter for fools, both conservatives and liberals. They don't really believe any of it. It's all about the "Will to Power" for them.

So how does the conservative confront this threat? Most conservatives, indeed, most folks spewing pseudo-legal nonsense on these threads, do not seem to have a clue what is really at stake. Do we run back to Vattel as the final human authority on the natural rights involved in becoming a citizen? Or are natural rights, precisely because they are NOT man-made, but God-made, subject to improvements in our understanding of them? I do not believe the conservative movement can survive surrendering that right to rethink natural rights. It is the single best defense we have against the corruption of legal positivism. Without it, we have no consistent basis for arguing that slavery was wrong, that abortion is wrong, that Kelo (settled law!) is wrong! These things are wrong now because good men and women forced us to rethink them in the light of God-given rights. If we can't hang on to that, the conservative movement will die, because it shall have lost the beating heart of what keeps us growing toward the truth.

Peace,

SR

From your answer, our thinking appears to align quite nicely. Natural law is certainly what I would consider the basis of God-granted rights.

But we seem to diverge in how we define “natural” in this instance. Natural in my mind is one that comes from nature or is inherit to a person, place, or thing. In the case of offspring, two of one race or species or type would naturally create one of the same. If we join two parents of different race, species, or type, the result is ambiguous or unpredictable. This is how I understand natural law. So it would follow in the case of “natural born citizen” that only those born of two citizens could be definitively a citizen without question.

The framers of the constitution didn’t stipulate location of birth as a constitutional imperative for NBC but the 14th amendment does guarantee citizenship based on place-of-birth AND under-jurisdiction so it might be considered an additional burden put upon a newborn. Although I think this is debatable since the 14th does not mention anything about natural-born and does not distinctly say those born outside of the country are NOT citizens (no distinct exclusivity).

In my mind, a strict constitutionalist would have to allow only those born of two citizen parents to be a natural-born citizen and I would say that place of birth is not relevant to this qualification.

Therefore I consider both Obama and Ted Cruz to fall short of this qualification (and also Rubio, for that matter).

I don’t see how there have been any changes through history that should alter this interpretation since it is plainly spoken in the Constitution and Amendment 14. Although I would say the only possible change you might argue is that prior to the Amendment 19 that perhaps only men could confer birth citizenship although I don’t agree with that argument based on the laws of nature (same is true of black men & women and Amendment 15).

Thanks for your thoughtful response. We still disagree on the nature of inheritance. If we were to suppose that citizenship was like physical heredity, which requires a combination of genetic information from two parents, then I suppose you might be right. However, citizenship is more like a possession, a family heirloom that can be passed from parent to child.

Say for example a woman owns, in her own name, a car, and she wishes at her demise for her son to have that car. She can pass that car to her son by inheritance without reference at all to her husband. If her husband has a different car, in his own name, he too can pass that to the same son. The son will be the legitimate owner of both cars.

By the same token, Ted Cruz can inherit from mother or father whatever they own separately, and also inherit from them whatever items they own jointly. Citizenship is owned entirely by the individual on whom it has been conferred. It is not something owned jointly. For example, would the citizenship of the father become invalid if the mother renounced hers? Of course not. He still is every bit the citizen he was before. He then can pass this to his son, whole and entire, because it has not been diminished at all by the mother's renunciation.

In the Cruz situation, the mother was a citizen in her own right at the time of his birth, and had the ability to pass that citizenship on to any of her children, even if her husband could not.

Peace,

SR

I’m a firm believer that words mean things.

You have chosen to interpret citizenship as a possession which does not align with the language used in the Constitution. The phrase used by the Constitution is “natural born citizen” - it’s not “citizen by inheritance”. The first phrase implies a genus or biological entity whereas the second is more one of property right or one of ownership.

Hence I would say your understanding is faulty.

I think you also have to consider the slippery slope that you are permitting in your interpretation. If a single parent can pass natural born status to their child, what would prohibit Putin from impregnating an American woman citizen and then sending the child to America to become President? The only requirement in your view would be that this child meet the residency and age limits imposed by the Constitution. Especially if Putin never lived a day of his life in the US and his wife would not need to be resident in the US either. Do you think this is what the framers thought would be wise? My guess is that this is EXACTLY what they were trying to avoid - a person with misplaced allegiances.

Yep, I believe words mean things too. As a attorney, I’ve had to defend clients from folks trying to read things into contracts that aren’t there. It is wrong to say the Contitution says something it doesn’t actually say. There were and there still are several different theories on how one could be identified as natural born.

1. Born on the soil
2. Born in subjection to the authority
3. Born to one parent already a citizen
4. Born to two parents already a citizen

And probably some others I’ve left out. The point is, not one of these specific models was officially codified as the means of being born into citizenship naturally, and you can cite any authority you like, and make good arguments for your opinion, but at the end of the day, neither your opinion nor mine are binding legal authority.

So just like “arms,” the founders left us with a term that conveys an important objective, but which does not lock us into a 17th century understanding of how to achieve that objective. Again, this is a good thing, even if it is a bit scary. It’s scary because it means we have to work at thinking how to accomplish that objective. It’s good because it gives us the tools we need to make that happen.

And what is the thing the founders feared that drove them to include this language? A legitimate fear that some foreigner, raised as a foreigner and obligated to foreign authority, would rise to become our commander in chief. Neither Ted Cruz, nor anyone like him, is the type of person this language was designed to filter out.

Now, if you or anyone is unhappy with the fact that the words of the Constituion do not say exactly how one becomes “ natural born,” and you want to lock it down to one or another or some combination of the above methods, then that would be a great thing to bring up as a delegate to the hoped for Article 5 convention of the states.

But to burden someone with non-binding opinions without a direct basis in the constitutional text seems like just another way to reject the Constitution. If you believe in your theory of citizenship, and you want it memorialized in the Constitution, then go for it. Until then, there is no one theory that controls it, and the Court will not venture into that, but will let it be resolved under the political question doctrine. The risk of Cruz being disqualified over this is virtually zero. Trump is pushing it because people are easily misled, and that helps him win. Sad.

Peace,

I agree that we should not restrict the definition any more than the words contained in the Constitution and Amendments allow. So let me answer each of the conditions you identify:

1. Born on the soil
I see no mention of location of birth in the Constitution. The only location dependency I read is that the Presidential candidate must have been a resident of the U.S. for the 14 years leading up to the election. If they had intended a location dependency on NBC, I suspect they would have mentioned it since they mentioned residency in the later requirement.

2. Born in subjection to the authority.
The Constitution DOES explicitly require this so I don’t see how this is debatable. Defining a subject may be a bit of a challenge but I would suggest there were some pretty clear definitions at the time of the Constitution’s creation. This seems to address the issue of dual citizenship and strengthens my claim that the NBC child should not have a parent with any claim besides the U.S.A.

3. Born to one parent already a citizen
I suspect in the early years of our country that the father was the only requirement in bequeathing citizenship since women were citizens by marriage to their citizen husbands. I think you could argue in early law that this was the definition for NBC (citizen father only required)

4. Born to two parents already citizens
Here is where I think you are correct that the definition of NBC is adapted to mean both parents now that we do uniquely define a woman to have citizenship distinct from her husband (by law). So prior to women’s rights the child would follow the father’s citizenship but after the recognition of women’s rights as full citizens, we account citizenship of the child from two unique entities.

According to you, there is no definition for NBC definitively and hence it can mean whatever SCOTUS wants to define. That is not an originalist interpretation of the Constitution and hence I disagree with your assessment. I believe they have a very defined intent and meaning and that we can determine this succinctly as I have itemized above.

If they wanted to be ambiguous, they would not have used the term “natural born”. They obviously had an intent to make this requirement unique and more strict than merely “citizen”. You have lowered the bar for NBC to be essentially equal to “citizen” and I see no exclusivity in your definition.

As I have mentioned before concerning your “arms” analogy that it is not applicable to this discussion. The term “arms” has evolved greatly as a result of technology and science but the term “natural born citizen” is no different in today’s world than when the Constitution was crafted. People are still born to a man and woman and born in a specific location. People are still citizens of countries just as in the 1700’s. As mentioned above, the only possible change in the last 250 years is that women are now recognized as unique from their husbands in terms of citizenship.

I suppose in the future we could have a legal case in which a child is born to a single mother and the father is undocumented (mother is unmarried) and this may potentially define the child as NBC if the mother is a U.S. citizen. So perhaps this could be another evolutionary change to the NBC definition that you claim. I suppose we will cross this bridge when we come to it. I think with our modern DNA technology that we could probably define the father and hence consider that information in light of the two-parent requirement?

So it may very well require at some point soon that amendments be made that add clarity to the NBC question.

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