Posted on 01/12/2016 10:09:44 AM PST by Behind the Blue Wall
Donald Trump is actually right about something: Sen. Ted Cruz (R-Tex.) is not a natural-born citizen and therefore is not eligible to be president or vice president of the United States.
The Constitution provides that "No person except a natural born citizen . . . shall be eligible to the office of President." The concept of "natural born" comes from the common law, and it is that law the Supreme Court has said we must turn to for the concept's definition. 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."
. . .
Cruz is, of course, a U.S. citizen. As he was born in Canada, he is not natural born. His mother, however, is an American, and Congress has provided by statute for the naturalization of children born abroad to citizens. Because of the senator's parentage, he did not have to follow the lengthy naturalization process that aliens without American parents must undergo. Instead, Cruz was naturalized at birth.
“By the law of nature alone, children follow the condition of their fathers, and enter into all their rights”
‘Following the father’ might go all the way back to Roman law. Or could it be Code Napoleon? I’m not sure when we might have expanded this to include the mother. There was some change around 1920.
>>>”The term was hardly vague! It was well understood by their study of natural law, in fact to them it was self-evident.”
Yes it was vague. It would have been nothing for them to simply put it in the Constitution. How hard would that have been? They could have settled the matter, just as they did for the President not being allowed to be naturalized, and many other things they actually chose to specify, but in this case they didn’t. For some relatively common situations, including one parent a citizen and the other not, and of American parentage but not born on American soil, when they could have.
You say it was all just understood by them. But they knew things changed. They weren’t ignorant of history or the law and lawyers, they had the example of the United States before them with her history as separate colonies and wars and yet they passed on strictly laying out in the law what “natural born” meant. It would definitely always mean not naturalized, but “natural-born” would be up for interpretation, including legally, and have much to do with changes in the law on who a citizen even was.
I’ll say a little more on that by mentioning Barack Obama, who you referred to in another reply to me.
I spent lots of time on his citizenship issue back in 2008. And like many people, including journalists investigating the matter, I was surprised to learn that candidates didn’t have to go through some application process or any way legally prove their eligibility. In fact, it was hard to legally challenge their eligibility. So why didn’t the Constitution writers make settling things easier, and actually just leave a process that the candidates would have to go through to prove their eligibility? It’s not impossible that Chester Arthur was indeed born in Canada, so why not, with so many Americans who could actually prove their American-soil birth, just leave a legal process that forces candidates to prove their eligibility, rather than leave a system without such a process and that actually makes it difficult to challenge the candidate’s eligibility?
And on the Obama situation, I looked into it very carefully, as I said, because of the possibility that he was indeed born in Kenya on a visit by his mother, and in that case the laws on CITIZENSHIP in that particular year (which were changed, I believe, the very next year) would not have made him a citizen. In that case, someone who is not even a citizen can’t be “natural-born.” There were the questions about him reportedly having two different places of birth in Honolulu, as sources even on Wikipedia didn’t agree, and possibly him being treated as a foreign student in college, and in going to Afghanistan. There were also questions that seemed legitimate to me about his birth certificates that were released, including if they were possible forgeries as questions were raised about them not having the proper formats, for instance. So if he didn’t have American citizenship and was raised from birth with the understanding that he wasn’t American, then that and some sort of coverup later to keep a lid on documents showing that fact so he could run would certainly be relevant. Yet the courts even were resistant to investigating that, and to doing things like forcing him to release school records.
In Ted Cruz’s case, though, his birth is clear. The whole situation is clear, without anyone needing to dig around in Canada or ask to see his long-form birth certificate. And the laws of granting citizenship were such that he was clearly a CITIZEN at BIRTH.
I really think the forest is being missed for the trees here, and something definite is being superimposed when it wasn’t made definite in the first place. Even in the Minor case from the late 1800’s, the Supreme Court justice notes that NBC wasn’t defined in the Constitution. The Constitution writers understood the significance of not defining NBC, especially in terms of opening it up to SOME ongoing legal interpretation. But one situation would be precluded, and that’s the most important one, naturalized citizens.
I understand that the Constitution writers put the “natural born” provision in for the sake of allegiances. There is no other reason for it than that.
But again, the most effective thing they could do was to disallow naturalized citizens which they did.
But not defining “natural born” would allow for the country to change without the need for possibly amending the Constitution on this question, which is always a danger.
Here’s an example. African-Americans weren’t “natural-born citizens” although they were natural-born because they weren’t legally regarded as CITIZENS. Once they were citizens, though, then the “natural-born” requirement applied to them. That’s a case where the changing of “citizen” affected who is “natural-born.” So is the change made in citizenship that possibly applied to Barack Obama if he was actually born in Kenya.
And another thing on the forest and the trees. Having fought several wars and seen people with different allegiances during the Revolutionary War, and no doubt changing allegiances, the “not naturalized” implication of “natural born” was the big thing to the Constitution writers. That is still, unequivocally, with us today. There are people born citizens, and people naturalized. As I’ve mentioned, my father was one of the latter.
So I’ll put it to you in these ways. What is the evidence that “natural-born” wasn’t meant to be interpreted differently if other laws and circumstances changed?
Why wasn’t a mechanism left for making sure presidents were natural-born, and challenging them?
How much of what makes you an American comes from the soil you were born on, versus the knowledge of your birth citizenship, the citizenship of your parents, and where you’ve lived and for how long?
Thank you, and the same goes to you. I wrote a lengthy response on this to someone else tonight. If you are interested, it’s here:
http://www.freerepublic.com/focus/news/3382753/posts?page=429
If you take the precise language and apply it then I think one can sure make a case it needs clarifying or settling
The two sticking points are the dad being non citizen and foreign birth
I love Cruz but truth is more important whatever it is
Has anyone foreign born with a foreign daddy ever been president since those here at time of founding were deemed citizens de facto?
Jumping back in a little late here thanks for the redirect to your again very thoughtful comment, but I think what you’re missing is that Cruz is a naturalized citizen. How do we know? Because in order to determine that he is a citizen we have to look at a naturalization statute. Jus soli (born on U.S. soil) and jus sanguinis (born to two U.S. citizens) are a given: all of those kids have been considered citizens at birth for centuries if not longer by generally accepted principles of common law without reference to any statute. But when you get to born abroad with divided loyalties, that’s always been subject to statutes that granted citizenship in some cases, not in others, in some times, and not in other times. That’s a naturalized citizen, citizen by statute.
Long reply, but the answer lies in your last paragraph.
How much from the soil makes you natural born? Except for possibly those born of diplomats and others in the service of their country to TWO citizen parents, all of it. For a great analysis of the jus solis requirement look up constitution.org for presidential eligibility.
Few people have the skill to do this kind of constitutional analysis. Many more think of the result they wish to have and cherry pick only what they need to reach it. You should question whether you are of the latter.
T. Cruz is so out of the park with his non natural born status he will be denied the opportunity of being the first known foreign born president under the terms of Article II. The question is how much damage will he cause in the succor of his political vanity.
Respectfully, . . .
Besides Obama, lol?
1. NBC was not defined in the Constitution (C), and that people then “knew what it was” is not a legal definition and NOT legally binding, and as such, never was meant to be.
2. What NBC might be was most certainly discussed while the C was being debated and written.
3. And most certainly there was discussion about defining it.
4. The C writers were also aware that not defining it would leave it open to some change.
5. It is clear what “35 years of age” is, and “14 years of residency,” but anyone who reads “must be a natural-born citizen” has to ask, “what’s a natural-born citizen.”
6. The C writers varied greatly in their specifics on things. One read through the C will show that. They were very specific on many things, going into great detail, which our country is legally bound to unless we amend those words.
7. The C writers valued both inflexibility and flexibility - inflexibility in order to protect some fundamental things that might otherwise be undermined, and flexibility to adapt to changing conditions over an expected very long period of time, and to do so to provide for the least amount of amending of the C as possible, as constant amending would not be a good thing.
8. The C writers didn’t leave a clear-cut legal mechanism for making candidates prove their eligibility, or legally challenging it.
9. The C writers did leave some sort of mechanism for to do so, though - and that is the Presidential campaign itself, when the character and past of the candidates is probed, tested and challenged by the other candidates, and the public decides what it all means.
10. When Chester Arthur ran, his father was an immigrant, and I believe only became a citizen after his birth, and there were rumors he was born in Canada. But there was no legal challenge, and the matter was left to the public, to see if it would gain traction with them.
11. What NBC was interpreted to be, both in thought and practice, in the 1790’s, for example, is not the determining factor, because the C writers didn’t legally enshrine that meaning. It’s like a contract meant to be in effect for centuries leaving something undefined, intentionally, and something that isn’t obvious.
I think the fatal error to the logic of the arguments you favor is that you grant legal status to what was in the C writers’ minds - their MINDS - on what NBC might have meant then to them - but which THEY themselves chose NOT - NOT - to put down on paper so that it was the legal standard.
Whatever citizenship and NBC was legally interpreted to be in 1789, which would have been what made the most sense to them, since they both wanted to sufficiently protect the country while not overprotecting it and not keeping people from running for President on insufficient grounds, the C writers chose not to legally freeze exactly what the NBC were at the time.
I doubt that Ted Cruz will be forced from the race for this, but who can say right now? If he is, though, it will only be by conservatives forcing it. The left won’t be forcing it because as long as they don’t push the issue, then they are free to run candidates with similar eligibility situations to Cruz’s in the future and just say they don’t interpret things the same way as conservatives; and they have most Constitutional scholars backing them up; there is also no mechanism like an application process or a way to challenge eligibility; and they will most likely have the full backing of most Americans, who understand that NBC is only about allegiances, and will not legitimately see any common sense, logical connection for disallowing Cruz under today’s circumstances.
Now on the public’s role in this, it seems to be an ultimate authority in answering this question.
And there is so much that I believe the public generally gets wrong today. But not everything, and as for a true rationale that there is some real threat to Cruz’s allegiances due to his mere birth somewhere else while being a citizen from birth, the public will legitimately see none.
Many, MANY people spend time in other countries today, and probably many of them also have children there, and they will see that their American identity, and passing along their understanding of American principles to their children, and American influences, mean far more today than just
Holding to the interpretation you favor is overly restrictive. It was not LEGALLY set into law, and whether or not you acknowledge that, that’s the case. What you are arguing for is a traditional interpretation of a law, the interpretation of that day, rather than following the actual law that was written two-hundred or so years ago and has not been amended, so is still in effect.
https://today.yougov.com/news/2016/01/11/poll-results-cruz-birth/
Thanks for your reply and see this post:
http://www.freerepublic.com/focus/news/3382753/posts?page=447
And see also that Chester Arthur’s father was an immigrant and didn’t become a citizen before his birth:
“Arthur was born in Vermont to a Vermont-born mother and a father from Ireland, who was naturalized as a U.S. citizen in 1843, 14 years after Chester was born. Despite the fact that his parents took up residence in the United States somewhere between 1822 and 1824, Arthur additionally began to claim between 1870 and 1880[82] that he had been born in 1830, rather than in 1829, which only caused minor confusion and was even used in several publications.[83]”
https://en.wikipedia.org/wiki/Natural-born-citizen_clause#Chester_A._Arthur
I left out some of my reply that I had in a different file. Here it is:
I need an answer on something - who do you support for the Republican nomination? I’ll tell you, if I haven’t, that I support both Cruz and Trump, and any effort to represent Bible-believing Christians.
>>>Long reply, but the answer lies in your last paragraph...How much from the soil makes you natural born? Except for possibly those born of diplomats and others in the service of their country to TWO citizen parents, all of it. For a great analysis of the jus solis requirement look up constitution.org for presidential eligibility.
I don’t agree. I appreciate you sharing your opinion, but just so you know, you haven’t convinced me. I have yet to read the web page you brought up, but from glancing at it, and reading the various arguments different people have put forward, I don’t see that they’ve satisfactorily overcome the many challenges to their position.
As I believe we’ve agreed, there is no other basis for NBC but the matter of allegiances. That’s it.
So are you telling me that, presuming you were born yourself on U.S. ground, your allegiances to the U.S. would be different if your parents had worked for a year in another country and you had been born there, and were a U.S. citizen from birth, but then they came back.
I think you are still overlooking a few things.
In 1789, the Constitution was new and it was an advance in self-government which was also new. Two hundred plus years later, though, it is familiar and normal to people.
You also haven’t considered something else about the Constitution’s NBC requirement: that the presidential candidate must have lived for at least 14 years in the United States. A mere 14 years of residency! Someone could leave at age 2, and return at 23, and be eligible!
I do not want to write anything further, because I like Cruz, very much. Also, I do not know the answer on a related subject that no one, to my knowledge, has yet addressed--and, under the totality of circumstances, feel it would be wrong to speculate.
Here’s an interesting document, the Naturalization Act of 1790:
“And 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...”
http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html
Repealed five years later and replaced with a new naturalization law that dropped all references to natural born citizens.
Whistling in the wind my friend. A law repealed has no effect. In statuatory analysis, the new law has intent and by removing the natural born status the 1795 law clearly shows intent to not grant such status.
If one was to use repealed law as a basis for privilege then prior to 1934, I think, Cruz would not have been considered a citizen. How can someone not a citizen be a natural born citizen? Using positive law to justify Cruz’s attempted usurpation can never work, as it was natural law that gave rise to to the requirement.
As predicted, the damage is snowballing for Cruz, republicans are defecting, and if by a miracle he was nominated, Grayson and the libs have and will challenge him on the jus soli argument (with the current usurper getting a pass due to a forged BC.) We will not have the first known foreign born president this election cycle. It is time to move on and stop the damage.
You asked if I would support Cruz? Wholeheartedly, for any office he was qualified, which, unfortunatrly does not include the Presidency. This will be the position of many republican electors.
Respectfully, . . .
>>>Repealed five years later and replaced with a new naturalization law that dropped all references to natural born citizens.<<<
Yes I know. I didn’t have time to write more last night about it, but the naturalization law of 1790 was replaced by the 1795 law, then the law in 1798 and then in 1802.
My reason for bringing it up was merely in reply to the claim that NBC was understood by the Constitution writers to mean children born only on U.S. soil, the very first naturalization law in 1790 included a description of children of U.S. citizens born outside U.S. territory as expressly “natural-born.”
But again, in view of the whole picture, what NBC meant to the Constitution writers isn’t legally binding because they didn’t enshrine that understanding legally by putting it down in writing.
This is the whole picture.
- The Constitution’s flexibility - to allow for adapting to new situations and circumstances without the need for amendments, as much as would be possible.
- The Constitution’s inflexibility - to legally enshrine some principles and practices in order to protect them from capricious law-changing.
- Natural-born citizen clause - to protect the country from Presidents with allegiances to other nations.
- By the full conscientious choice of the Constitution writers, NBC was enshrined in the Constitution along with other rules for Presidential eligibility, but NBC itself was NOT legally defined.
-
Here’s another way to illustrate how much the Constitution’s lack of specificity on NBC matters:
The Constitution writers also had the option to write something like this on the requirements for becoming President:
“No one shall assume the office of President of the United States without meeting eligibility requirements.”
Meaning that there will be eligibility requirements, but the Constitution isn’t legally defining them. Statute law will define what they are. The Constitution in this case would only being go so far as to say that there must be eligibility requirements, and candidates must meet them. Under this scenario, those who are arguing against Cruz’s eligibility would similarly argue that whatever the statute eligibility laws were
back in 1790, (or 1795), then that’s what the eligibility laws should be today, even though, again, the Constitution itself provides no such distinction.
I’m not sure if I might look into this more as time allows, I very well may, but I’m satisfied at this point that Cruz is eligible, and believe his candidacy should be supported and not attacked.
Like I said, you have not at all convinced me, and nothing has changed. I’ve also found you to be evasive. You have not answered a direct question on who you support for President, but instead have tried to rewrite my question.
On the Naturalization Act of 1790, I’ve partially given you my comments on it, but I’ll also add that what you deem to be unconstitutional now and absolutely unthinkable to the Constitution writers then was actually the first law of the land for five years.
Funny how the opposite was true when John McCain ran for President.
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