Posted on 03/12/2015 12:32:49 PM PDT by SoConPubbie
Two of the top lawyers for the Obama and Bush administrations agree on this: Sen. Ted Cruz can become president. Legally speaking, anyway.
Paul D. Clement, former solicitor general for President George W. Bush, and Neal Katyal, former acting solicitor general for President Obama, penned a piece for the Harvard Law Review tackling the question of what the Constitution means when it says that the president must be at least 35 years old, a U.S. resident for at least 14 years and a “natural born Citizen.”
“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,” they wrote. “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.”
Cruz was born in a Canadian hospital to a mother who was a U.S. citizen. But he’s only the latest potential presidential candidate who has had his qualifications questioned. Sen. John McCain (R-Ariz.) was born in the Panama Canal Zone. Former Sen. Barry Goldwater (R-Ariz.) was born in Arizona before it was a state. Gov. George Romney (R-Mich.) was delivered in Mexico to U.S. residents. All were qualified to serve, . . . .
The First Congress, they noted, established that children born abroad to U.S. citizens were themselves citizens at birth “and explicitly recognized that such children were ‘natural born citizens.’
(Excerpt) Read more at washingtonpost.com ...
Do you consider every American who was “born within the United States and subject to the jurisdiction thereof” to be a naturalized citizen?
A 100% true assertion.
> That bolsters Senatot Cruz’s case to originalists.
To the contrary, it shows that a statute was required. And as you correctly observe, the most current statute is what matters, and the statute states “citizen”.
> A 100% true assertion.
Again, Naturalization Act of 1795
You are conveniently leaving out portions of that section; in full it reads as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Since it says
or naturalizedthere is no way that you can construe this as giving additional powers to Congress — Congress's only Constitutional power in this is
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;, therefore, any congressional act respecting citizenship must pertain to naturalization.
No; it does not — Congress cannot confer “natural born citizen” status, the ONLY citizenship it has authority over is naturalization.
To argue otherwise is to argue that the congress may alter the constitution by ordinary legislative means, and if THAT is the case the the Constitution provides no restriction at all on the government.
> Again, Naturalization Act of 1795
An act of congress, which means that it must be about naturalization, not about “natural born”. Congress does not have the authority to [re]define “natural born”, the only power respecting citizenship that they are granted is that of naturalization (See Art I, Sec 8).
Congress has passed bills and presidents have signed them into law which define the current criteria for being a Citizen of the United States At Birth under the provisions of the Citizenship Clause of the Fourteenth Amendment. The Immigration and Nationality Act of 1952, Section 301 sets forth the current criteria for being a Citizen of the United States At Birth. In the case of that particular piece of legislation, it was vetoed by President Truman and both House of Congress voted to override the President’s veto.
It is Supreme Court that has determined that a Citizen of the United States at Birth and a Natural Born Citizen are synonymous.
Elk v Wilkins, 112 U. S. 94 (1884)
“The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the constitution, by which ‘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;’ and ‘the congress shall have power to establish an uniform rule of naturalization.’Const. art. 2, § 1; art. 1, § 8.”
Citizen at birth includes naturalized citizens, citizen by birth does not.
And?
What are you going to believe a Supreme Court opinion (the same organization that said that said When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.
) or what the Constitution actually says?
“The distinction between citizenship by birth and citizenship by naturalization - Elk v Wilkins
There is no such thing in American law as a “citizen by birth.” That term is not in the Constitution. It is not in statutory law, case law, administrative law nor does it appear in the Uniform Code of Military Justice.
By your argument the U.S. Constitution is irrelevant. When Conservatives no longer defend the 'rule of law' then who else will?
The Republic is lost.
"Citizen by birth" is not law. Rather, it describes the result of applying the existing law to a particular birth.
If the answer is that the person is entitled to be a US citizen as a result of the circumstances of his birth, then he is Natural Born. If this idiot question ever gets before the Court, that's how they will rule.
Worth repeating.
It’s in the cite you provided, in that cite it is used to contrast with a naturalized citizen.
Ok, but that does not mean that a person who qualifies as a “Citizen of the United States AT BIRTH” is somehow also a naturalized “United States Citizen.” The two concepts are incompatible. Naturalization comes AFTER birth and AT BIRTH means precisely what it says.
Since there have already been more than 20 attempts to bring that question before the Supreme Court since 2008, I believe that the Justices consider the answer to already be settled law and they see no need to reinvent the wheel.
In 1898 the federal government asked the Supreme Court this question: “Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth?”
“To hold that Wong Kim Ark is a natural-born citizen within the ruling now quoted, is to ignore the fact that at his birth he became a subject of China by reason of the allegiance of his parents to the Chinese Emperor. That fact is not open to controversy, for the law of China demonstrates its existence. He was therefore born subject to a foreign power; and although born subject to the laws of the United States, in the sense of being entitled to and receiving protection while within the territorial limits of the nation—a right of all aliens—yet he was not born subject to the ‘political jurisdiction’ thereof, and for that reason is not a citizen. The judgment and order appealed from should be reversed, and the respondent remanded to the custody of the collector.”
The Supreme Court ruled 6-2 in favor of Wong Kim Ark who was born in San Francisco.
The Supreme Court disagrees:
“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.” – U.S. v. Wong Kim Ark
Observe again the Naturalization Act of 1795 which is a naturalization act “conferring citizenship upon foreign-born children of citizens”.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.