Posted on 01/19/2016 7:57:25 AM PST by Isara
Harvard law professor Lawrence Tribe’s view of the Constitution and the “natural born” citizen issue seems to blow with the political winds. Why has his view completely switched from 2008? Is it because, as Sen. Ted Cruz said at the Republican debate on Jan. 14, Tribe is a “left-wing judicial activist” and “a major Hillary Clinton supporter?” Whatever the reason, Tribe’s current assertions about the issue are wrong and Donald Trump may want to think twice before he again cites Tribe as an “expert”.
In a prior article, I explained the legal interpretation of the requirement in Article II, Sec. 1 of the Constitution that a president be a “natural born Citizen”. The Framers had a deep understanding of British common law and applied its precepts in drafting the Constitution. One of those precepts was that children born to a British citizen anywhere in the world, even outside the dominions of the British Empire, were “natural born” citizens of the Empire who owed their allegiance to the Crown.
The First Congress, which included many of the Framers, codified this view of a natural born citizen in the Naturalization Act of 1790, which specified that the children of a U.S. citizen born “out of the limits of the United States, shall be considered as natural born Citizens.” The modern version of this Act is found at 8 U.S.C. §1401. There is little doubt that Ted Cruz meets this requirement since his mother was a U.S. citizen when he was born.
"Yet now, Tribe provides the exact opposite opinion with regard to Ted Cruz."
But in a Boston Globe commentary on Jan. 11, 2016, Lawrence Tribe now claims that “the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a ‘natural born’ citizen.” As I have explained, this claim is completely wrong. But that isn’t just my opinion, it is also the opinion of Lawrence Tribe – at least it was in 2008.
On March 19, 2008, Tribe and Theodore B. Olson, solicitor general during the last Bush administration, published an “opinion letter” in relation to John McCain and the meaning of the “natural born” citizen requirement. In that letter, Tribe said the exact opposite of what he just said in his Boston Globe commentary (emphasis added):
“The U.S. Supreme Court gives meaning to terms that are not expressly defined in the Constitution by looking to the context in which those terms are used; to statutes enacted by the First Congress…and to the common law at the time of the Founding. These sources all confirm that the phrase ‘natural born’ includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance.”
Tribe (and Olson) then go on to specifically cite the successive statutes passed by Congress on this issue, including the Naturalization Act of 1790. As I did in my analysis, they make the point that “the statute that the First Congress enacted on this subject not only established that such children are U.S. citizens, but also expressly referred to them as ‘natural born citizens.’” They even cite to the British Nationality Act of 1730, which provided that children born to a British citizen were “natural-born Subjects…to all Intents, Constructions and Purposes whatsoever.” According to Tribe – at least in 2008 – Sen. McCain’s status as a natural born citizen, though he was born abroad, was “consistent with British statutes in force when the Constitution was drafted, which undoubtedly informed the Framers’ understanding of the Natural Born Citizen Clause.”
For those who think the case regarding John McCain is different because he was born on a U.S. military base, Tribe blithely dismisses that as an issue. The opinion letter says that “regardless of the sovereign status of the Panama Canal Zone at the time of Senator McCain’s birth, he is a ‘natural born’ citizen because he was born to parents who were U.S. citizens.”
Yet now, Tribe provides the exact opposite opinion with regard to Ted Cruz. He sarcastically claims that Ted Cruz is disqualified because the type of judge that Cruz admires “and says he would appoint to the Supreme Court is an ‘originalist,’ one who claims to be bound” by the historical meaning of the Constitution when it was adopted. Based on the legal principles that prevailed at the time of the Constitution, Tribe now says the supposed “original” meaning of “natural born” citizen only applies to someone born on U.S. soil. Funny how Tribe’s recitation of the legal principles that supposedly prevailed in the late 1700s and his interpretation of the original meaning of this constitutional provision have completely changed in only eight years.
Just about the only true fact in Tribe’s Jan. 11 opinion is his assertion that this issue has never been settled by a Supreme Court opinion. But why would it need to be? I wouldn’t want to take such a case up to the Supreme Court. The erroneous claims being made by those pushing this idea are not supported by federal law nor the historical legal context and history of the Constitution and prior British precedent. I would tell any client trying to make such a challenge that the case was a sure loser.
In 2008, Lawrence Tribe agreed with me. In 2016, he has suddenly changed his mind. I guess that is an example of the Harvard Law School view of a “living Constitution.”
It is not about what is true or false about Cruz and NBC. It is about causing voters to pause when choosing between voting for American born or Canadian born. It is all politics..
Obviously the media will treat these situations differently which is a factor, but the lack of any birth certificate at all did not cause pause in electing Obama. No one knew or cared where he was born.
When it comes to how people vote, it matters very little.
One cannot conduct a marketing campaign with facts and data.
No animus intended here.
Slight correction. It’s all bs.
I think the author nailed it. It isn’t “settled”, but expecting the Supreme Court to vacate Congress’ power to define “natural born citizen”, after Congress has exercised that power since the founding of the Republic, is just foolish.
This author begins with a mistake about “Natural Born Citizen” in its historical context.
Blacks Law Dictionary, even a new online edition defines it as below:
What is NATURAL-BORN?
the term applying to the person who is born in the country where they are a citizen.
Law Dictionary: What is NATURAL-BORN? definition of NATURAL-BORN (Black’s Law Dictionary)
If the author’s premise is flawed, as it seems to be, his reasoning is also flawed.
This author begins with a mistake about “Natural Born Citizen” in its historical context.
Blacks Law Dictionary, even a new online edition defines it as below:
What is NATURAL-BORN?
the term applying to the person who is born in the country where they are a citizen.
Law Dictionary: What is NATURAL-BORN? definition of NATURAL-BORN (Black’s Law Dictionary)
If the author’s premise is flawed, as it seems to be, his reasoning is also flawed.
If the public wakes up to the fact is is being duped, there will be a reckoning in the nature of distrust of these legal "experts." As well should happen.
It is immoral to mislead a gullible public on such an important question.
It would make his piece a little bit more credible...
How telling it is that the author did not see fit to discuss the effect of the Naturalization Act of 1795 which, among other things, specifically removes the term ‘natural born citizen’ and substitutes for it the term ‘citizen’ that is to say, a naturalized citizen, not a natural born citizen. The framers knew very well that under the widespread custom and usage of the time, consistent with the law of jus soli, the term ‘natural born citizen’ meant, born on the land of TWO parents themselves citizens of the land, including naturalized citizens. Mr Cruz’s remark that because he [purportedly] had one parent who was a US citizen, he was a natural born citizen, was, considering his endless references to his vast understanding of the US Constitution, a cynical howling lie. Not to mention that he refuses to open his immigration file and was a Canadian citizen until 2014. And the Wall Street loans. As Joe Kenda would say, wonderful. Goodnight, Ted, go talk to Mrs. Clinton, she may need a running mate - you’d fit right in.
The author doesn't even know how to spell Tribe's first name.
FAIL
Well, that's just scary.
This guy isn't even thorough enough to spell his target's name correctly, and he's popping off about important matters like this?
And he was a former member of the FEC? I would have 86ed his "resume", for sloppiness like that.
Bellei is neither Direct on point nor a precedent
I tell you, if the people wake up to the fact they are being deliberately misled, they will be angry about that.
von Spakovsky is published at Heritage too. I wonder if DeMint is in on the qualifications scam. Must be, he gave a pass to Obama.
Save
I hear what you are saying, and disagree. So, at least the issue is unsettled, as a matter of law.
The only opinion that matters about this issue is the opinion of the voters and 50% of Republicans think Cruz is unqualified or aren’t sure:
Cruz is toast.
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