Posted on 01/14/2016 12:45:14 AM PST by monkapotamus
If Ted Cruz is a "natural born citizen," eligible to be president, what was all the fuss about Obama being born in Kenya? No one disputed that Obama's mother was a U.S. Citizen.
Cruz was born in Canada to an American citizen mother and an alien father. If he's eligible to be president, then so was Obama -- even if he'd been born in Kenya.
As with most constitutional arguments, whether or not Cruz is a "natural born citizen" under the Constitution apparently comes down to whether you support Cruz for president. (Or, for liberals, whether you think U.S. citizenship is a worthless thing that ought to be extended to every person on the planet.)
Forgetting how corrupt constitutional analysis had become, I briefly believed lawyers who assured me that Cruz was a "natural born citizen," eligible to run for president, and "corrected" myself in a single tweet three years ago. That tweet's made quite a stir!
But the Constitution is the Constitution, and Cruz is not a "natural born citizen." (Never let the kids at Kinko's do your legal research.)
I said so long before Trump declared for president, back when Cruz was still my guy -- as lovingly captured on tape last April by the Obama birthers (www.birtherreport.com/2015/04/shocker-anti-birther-ann-coulter-goes.html).
The Constitution says: "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."
The phrase "natural born" is a legal term of art that goes back to Calvin's Case, in the British Court of Common Pleas, reported in 1608 by Lord Coke. The question before the court was whether Calvin -- a Scot -- could own land in England, a right permitted only to English subjects.
The court ruled that because Calvin was born after the king of Scotland had added England to his realm, Calvin was born to the king of both realms and had all the rights of an Englishman.
It was the king on whose soil he was born and to whom he owed his allegiance -- not his Scottish blood -- that determined his rights.
Not everyone born on the king's soil would be "natural born." Calvin's Case expressly notes that the children of aliens who were not obedient to the king could never be "natural" subjects, despite being "born upon his soil." (Sorry, anchor babies.) However, they still qualified for food stamps, Section 8 housing and Medicaid.
Relying on English common law for the meaning of "natural born," the U.S. Supreme Court has repeatedly held that "the acquisition of citizenship by being born abroad of American parents" was left to Congress "in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization." (U.S. v. Wong Kim Ark (1898); Rogers v. Bellei (1971); Zivotofsky v. Kerry (2015), Justice Thomas, concurring.)
A child born to American parents outside of U.S. territory may be a citizen the moment he is born -- but only by "naturalization," i.e., by laws passed by Congress. If Congress has to write a law to make you a citizen, you're not "natural born."
Because Cruz's citizenship comes from the law, not the Constitution, as late as 1934, he would not have had "any conceivable claim to United States citizenship. For more than a century and a half, no statute was of assistance. Maternal citizenship afforded no benefit" -- as the Supreme Court put it in Rogers v. Bellei (1971).
That would make no sense if Cruz were a "natural born citizen" under the Constitution. But as the Bellei Court said: "Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress." (There's an exception for the children of ambassadors, but Cruz wasn't that.)
So Cruz was born a citizen -- under our naturalization laws -- but is not a "natural born citizen" -- under our Constitution.
I keep reading the arguments in favor of Cruz being a "natural born citizen," but don't see any history, any Blackstone Commentaries, any common law or Supreme Court cases.
One frequently cited article in the Harvard Law Review cites the fact that the "U.S. Senate unanimously agreed that Senator McCain was eligible for the presidency."
Sen. McCain probably was natural born -- but only because he was born on a U.S. military base to a four-star admiral in the U.S. Navy, and thus is analogous to the ambassador's child described in Calvin's Case. (Sorry, McCain haters -- oh wait! That's me!)
But a Senate resolution -- even one passed "unanimously"! -- is utterly irrelevant. As Justice Antonin Scalia has said, the court's job is to ascertain "objective law," not determine "some kind of social consensus," which I believe is the job of the judges on "American Idol." (On the other hand, if Congress has the power to define constitutional terms, how about a resolution declaring that The New York Times is not "speech"?)
Mostly, the Cruz partisans confuse being born a citizen with being a "natural born citizen." This is constitutional illiteracy. "Natural born" is a legal term of art. A retired judge who plays a lot of tennis is an active judge, but not an "active judge" in legal terminology.
The best argument for Cruz being a natural born citizen is that in 1790, the first Congress passed a law that provided: "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."
Except the problem is, neither that Congress, nor any Congress for the next 200 years or so, actually treated them like natural born citizens.
As the Supreme Court said in Bellei, a case about the citizenship of a man born in Italy to a native-born American mother and an Italian father: "It is evident that Congress felt itself possessed of the power to grant citizenship to the foreign born and at the same time to impose qualifications and conditions for that citizenship."
The most plausible interpretation of the 1790 statute is that Congress was saying the rights of naturalized citizens born abroad are the same as the rights of the natural born -- except the part about not being natural born.
Does that sound odd? It happens to be exactly what the Supreme Court said in Schneider v. Rusk (1964): "We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the 'natural born' citizen is eligible to be president. (Article II, Section 1)"
Unless we're all Ruth Bader Ginsburg now, and interpret the Constitution to mean whatever we want it to mean, Cruz is not a "natural born citizen."
Take it like a man, Ted -- and maybe President Trump will make you attorney general.
I’ve heard there were questions about how long Obama’s mother had been a citizen.
It wasn’t Dunham’s citizenship, but her age. She didn’t meet the age and prior residency requirements to pass on citizenship to her kid.
I thought the biggest question was if she had revoked her citizenship while in Indonesia and by extension, Obama’s also. That would explain how both of them could have gotten foreign passports and spent time in Pakistan.
The potential difference facing Cruz is the willing judicial activism that would proceed without restraint.
We’re not yet on equal ground with the Left.
Ah, mea culpa.
I was always curious about that.
Yes, her demon spawn was plopped out while she was underage.
As I understand it, a minor is unable to confer citizenship by birth. Only an adult meeting the residence requirements can do so.
There were many questions about the demonic ones birth that were never answered.
My biggest concern right now is that the Establishment will push Cruz and get him in place to knock out Trump
Then the Establishnent will turn on Cruz, and say he is not qualified. They may even judge shop to do it. That way they can slide Rubio or Bush in place after they disqualify Cruz.
I heard Trump 20,000 people see him speak in Florida last night. I don’t see any other candidate getting a crowd that large.
Think Trump should be the nominee and still select Cruz as his VP. I think once Cruz is the VP then it will be almost impossible to play the “your not qualified” game.
If he isn’t eligible to be POTUS (and he isn’t), he isn’t eligible to be vice POTUS I’m afraid. he has placed us in a difficult position by winning over so many hearts and minds as he has. In my opinion, he represents a serious threat to our constitution and our republic. he is the snake of which Donald Trump spoke of. you know full well what he is and yet you invite him into your house. without a doubt, it will come to bite you in the a55 later.
Annie doesn’t like conservatives. 2012 - Romney. 2016 - DT. She will be out in the cold two elections in a row.
Good to see the rules followed.
Obviously Cruz should go to court and seek a declarative judgement.
The whole issue turns on what “natural born citizen” means. No court is going to rule that it is equivalent to Vattel’s “natives” (born to two citizen parents and born within the country) because of the constitutional chaos that would result from declaring Obama to have been invalidly elected. (That should have been pressed in 2008 if it were to have a chance of being established as black letter law.) The question turns on whether it simply means “citizen at the time of birth” — the most generous interpretation, which still left Kenyan-birth Obama “birtherism” as a live position, since prevailing citizenship law at the time of Obama’s birth would not have made him a citizen at all had he been born in Kenya due to his mother’s age, but which kills Cruz “birtherism” as a viable position — or something more restrictive.
There are readings of Blackstone’s comments on the corresponding British notions that could go either way, no actual American court rulings, and besides the Constitution itself, only the 1790 statute uses the phrase, and supports the generous interpretation.
Obama never was eligible, and neither are Cruz, Rubio, Jindal, nor Nikki Haley.
I agree about Rubio and Haley but I think they have a stronger case than Cruz does as they were at least born on US soil which makes them undeniably native born satisfying the jus soli aspect of the NBC.
While we can discern from article II, section 1, paragraph 5 that a person must be a native to be a NBC, we are left to conjecture as to the jus sanguinis aspect and must resort to historical records which are mostly consistent on the matter but still open to debate.
I'm sure after we nominate Ted Cruz, however, they'll have no problem with that pesky article II business and it will never be an issue again.
Psssssssst!
Hey Ann, in case you never noticed, Obama has been president for 7 years already. All that birther talk/lawsuits didn't count for s**t.
If Obama was born on U.S. soil (Hawaii), it would be a moot point regardless of his mother's age since that would make him a citizen. If he was born in, say, Kenya or Canada, no dice. Thus the crux of the birther issue as it relates to his mother's age.
The definition of Natural Born Citizen is a whole 'nother can of worms.
"Despite Sen[ator] Cruz's repeated statements that the legal/constitutional issues around whether he's a natural-born citizen are clear and settled," he told the Guardian by email, "the truth is that they're murky and unsettled."
..."the kind of judge Cruz says he admires and would appoint to the supreme court, an 'originalist' who claims to be bound by the historical meaning of the constitution's terms at the time of their adoption, Cruz wouldn't be eligible because the legal principles that prevailed in the 1780s and 90s required that someone be born on US soil to be a 'natural born' citizen."
He added, "Even having two US parents wouldn't suffice for a genuine originalist. And having just an American mother, as Cruz did, would clearly have been insufficient at a time that made patrilineal descent decisive.
"On the other hand, to the kind of judge that I admire and Cruz abhors, a 'living constitutionalist' who believes that the constitution's meaning evolves with the needs of the time, Cruz would ironically be eligible because it no longer makes sense to be bound by so narrow and strict a definition."
So.. Trump was correct when he said that Cruz needs to take this to a court for clarification ASAP!
Those questions only mattered if Obama had been born abroad.
The law that gives NBC status to anybody Congress wants to give it to, seeing as how Congress has plenary power in the area of citizenship, required a certain US residence time for the mother, to satisfy the law. If, hypothetically, Obama had been born abroad, the circumstances of birth don't satisfy the statute.
Some people say that means the hypothetical Obama isn't an NBC, but as a matter of law, the issue is always unsettled. Congress can retroactively make a person an NBC by passing a law that confers citizenship without going through a naturalization process.
Here is a real statute, 8 USC 1404
A person born in Alaska on or after March 30, 1867, except a noncitizen Indian, is a citizen of the United States at birth.Alaska wasn't even a state in 1867, but anybody born in Alaska after March 30, 1867 is a natural born citizen of the US.
Congress can make any person, or any class of persons, NBC, by passing a law that includes "is a citizen of the United States at birth." It do that retroactively. See Alaska. It could do that for the hypothetical Obama by removing or relaxing the residency requirement.
All SCOTUS has to do is limit its analysis to the case in hand, Cruz. Is a person born under 8 USC 1401(g), who would not otherwise be a citizen, naturalized?
It has answered that question, but not with Cruz, and not in the context of a presidential election contest.
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