Posted on 01/18/2016 8:21:28 PM PST by SeekAndFind
There are countries that grant citizenship based on the fact that one of your grandparents was a citizen. So, you could be born in the US to two citizen parents and still have "divided loyalties". Which is obviously absurd!
In 2011, the Congressional Research Service published an essay on the NBC question. It concludes:
In textual constitutional analysis, it is understood that terms used but not defined in the [Constitution] must, as explained by the Supreme Court, “be read in light of British common law” since the Constitution is “framed in the language of the English common law.”In addition to historical and textual analysis, numerous holdings and references in federal (and state) cases for more than a century have clearly indicated that those born in the United States and subject to its jurisdiction (i.e., not born to foreign diplomats or occupying military forces), even to alien parents, are citizens “at birth” or “by birth,” and are “natural born,” as opposed to “naturalized,” U.S. citizens. There is no provision in the Constitution and no controlling American case law to support a contention that the citizenship of one’s parents governs the eligibility of a native born U.S. citizen to be President.
Although the eligibility of native born U.S. citizens has been settled law for more than a century, there have been legitimate legal issues raised concerning those born outside of the country to U.S. citizens. From historical material and case law, it appears that the common understanding of the term “natural born” in England and in the American colonies in the 1700s may have included both the strict common law meaning as born in the territory (jus soli), as well as the statutory laws adopted in England since at least 1350, which included children born abroad to British fathers (jus sanguinis, the law of descent).
The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.
Oh Come-on!!!
I am not a lawyer, but Sen. Cruz is and not only that he is one of the smartest lawyers in the country. If there is one thing I know it is that smart lawyers have ways of accomplishing what they want to regardless of what you or I think is possible. He could publicly ask Donald Trump or one of the other contenders who most likely has standing to sue on this issue in Texas where he would get the most sympathetic jurists. Donald would most likely comply.
For all we know this may already have been done in private and this dog and pony show is just to keep the ratings up. What other reason would we have to keep watching? There is nothing people like to watch more than a good fight.
The “essay” is all well and good and reminiscent though not quite as in depth as frequent discussions here by we “birfer morons” in years past. The essay you found however is not actually conclusive and does not give relevant example cases thus is the opinion of one Obama supporting government employee. But I am extremely glad that you are now resorting to research and reason instead of insults this afternoon which I find very refreshing.
I will and after much hair pulling, concur that I can find no such legal authority that I can point to, other than opinion and what looks like authority under statute.
Even in English common law you can find this opinion but not something that stands out as legal authority, In the US constitution there is the granted authority to congress to define and regulate naturalization but not NBC as it appears.
I don't have any argument over what a natural born citizen is, I think it's obvious that it is based on Jus Solei and that is quite clear.
Having said that, where is the barrier preventing Congress from establishing a naturalization class that has the same rights as a NBC?
I believe, but am open to being corrected, that they did exactly that and have done over the many decades since the founding. But the cases of this by their nature are quite rare. SCOTUS has never adjudicated a similar or like case that I can see, which is probably responsible for this argument and speculation, and that is not going to be settled for this election.
Cruz is pretty much everybody’s second choice. As candidates fall away, Ted gathers a large chunk of their people.
A recent poll showed him beating Trump in a head-to-head matchup.
“Ted Cruz is eligible because he is a citizen by birth.”
Ted Cruz says he acquired his U.S. citizenship by inheriting his mother’s U.S. citizenship, which is the statute at his time of birth known as the U.S. Immigration and Naturalization Act of 1952, and it says Ted Cruz “Sec. 301. (a) The following shall be nationals and citizens of the United States at birth; . . . (7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States . . . .”
The Foreign Affairs Manual of the U.S. State Department administering that naturalization statutory law says: “U.S. Department of State Foreign Affairs Manual Volume 7
Consular Affairs. 7 FAM 1151 INTRODUCTION... b. 8 U.S.C. 1101(a)(23); INA 101(a)(23)) defines naturalization as the conferring of nationality of a state upon a person after birth by any means whatsoever. . . For the purposes of this subchapter naturalization includes:... (5) “Automatic” Â acquisition of U.S. citizenship after birth, a form of naturalization by certain children born abroad to U.S. citizen parents or children adopted abroad by U.S. citizen parents.”
United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. said “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized....”
Nowhere is there a place in the Constitution says a mere “citizen”, a “naturalized citizen at birth”, or a “naturalized citizen” is eligible to the Office of the President. Consequently, there is no possible way that Ted Cruz can remotely be argued to be eligible for the Office of the President, because the above quoted laws expressly forbid a naturalized U.S citizen to be eligible for the Office of the President.
Thank you very much for the detailed explanation. That makes for the type of discussion that I appreciate so much on this forum. I wish that there were a way for Ted Cruz to expedite a definitive ruling from the judicial branch, but others here seem to think that this is not possible. I do not believe that using ridicule and a stream of questionable documents would put the eligibility issue to rest as it did for Obama. Sadly Cruz is never going to get sympathetic treatment from the Democrats or the press and probably not even the GOP establishment.
A handful of legal experts and Constitutional law scholars here have determined that Cruz is not eligible to be President of the United States. That settles it for me.
“Natural born” means you can’t have been born by caesarean section. You must have came down the “natural” canal. /s
Being sarcastic but I can see Sheila Jackson-Lee saying this.
I have been trying to find the focal point of this argument.
I think it's true that the constitution regards Jus Solis (from the land or place) and the principle for natural born status.
I think it's true that Jus sanguinis (from descent or blood), is a valid principle used by US code since the founding, it appears in it's naturalization function..
If the rights of citizenship transfer to the child regardless of place, under certain circumstances, then how is it that rights transferred from a natural born citizen change to become a restricted citizenship?
I think that probably sums up my question.
You are exactly right; and I used "handful" to convey my sarcasm. G'day, FRiend. :-)
“I don’t have any argument over what a natural born citizen is, I think it’s obvious that it is based on Jus Solei and that is quite clear.”
Such a theory is falsified by the historical events after 1776 and before 1790 and the next period after 1802 to 1855. Upon their joint Declaration of Independence, each of the former Colonies and now States began the task of revising their former colonial statues to remove the objectionable feudal English and British laws and replace them with the past and future American common law, Law of Nations, and statutory laws based upon principles to be found in those laws and in Natural Law. Accordingly, each State determined its own immigration and naturalization policies. Some of these new statutes denied State citizenship and therefore U.S. citizenship to any person born in the jurisdiction of the State with a father who was an alien. State citizenship required a White person etc. with two State or U.S. citizen parents, with the pre-Revolutionary colonial citizenship being taken into consideration to establish post 1776 citizenship. This statutory practice of some States relied upon jus sanguini and rejected jus soli. The same can be seen in English history and Anglo-Norman history with jus sanguini and jus soli taking precedence over each other and then applying a mix of the two doctrines, but only through naturalization, or denying all or nearly all forms of naturalization. That is another reason why it takes a journey through history with a scorecard to make sense of how the laws were derived and applied. After doing so it emerges that whichever standard was applied, the ultimate arbiter became the same as it was in prehistoric times with the family and the band foraging as nomads across the landscape, and that was birth into the privileged class as a child of the privileged member by natural affinity a birth resulted in membership in that same privileged class. later determinations by reason of allegiance and/or place of birth were methods used to accomplish the objective of populating the family and band with persons whose loyalty and devotion were dedicated solely to that family and band. this is also why traditionally, those person who were married outside the allegiance and loyalty to the family, band, or clan were deemed to expatriate themselves and make a new allegiance with the foreign family, band, and clan. Birth abroad was the application of this principle, where as a matter of doctrine it was recognized the alien born child possessed a natural born affinity to the foreign place of birth along with an optional natural born affinity by blood to the father’s sovereign; whereas the natural born citizen has a natural born affinity to the place of birth and a natural born affinity by blood to the father’s sovereign. In consequence, a society deems it to be necessary to renounce the alienage resulting from the birth abroad in the foreign place and the foreign allegiance to the foreign sovereign by adopting the father’s sovereign and place in preference to the place of birth as a naturalization of that status to something resembling that of the person natural born in all respects and not just some of those respects.
“Having said that, where is the barrier preventing Congress from establishing a naturalization class that has the same rights as a NBC?”
Yes, there is a barrier inherent in the properties of inalienable and natural rights attaching to a child when born in any given place with any given parentage. With respect to being eligible to the Office of the President and the Office of the Vice President, there is no barrier to changing the natural born citizen clause other than the successful completion of the procedure required for enacting an Amendment to the Constitution. Interestingly, such an amendment could remove the natural born citizen clause to make all U.S. citizens and all U.S. nationals eligible, or the natural born citizen clause could be extended to also exclude all naturalized U.S. citizens and U.S. nationals from additional Federal offices such as the Senate, House of Representatives, Cabinet officers, or more. Given the past abuses of the Constitution and the subversion of the U.S. demographics, an attempt to change the natural born citizen clause could provoke its use to reverse the increasing foreign influence in the U.S. Government.
When I would not say it's falsified, or that I proposed a theory.
I am observing the present.
when=well.......
Time for dinner..
“If the rights of citizenship transfer to the child regardless of place, under certain circumstances, then how is it that rights transferred from a natural born citizen change to become a restricted citizenship?”
In the case of a child born abroad and in the allegiance and jurisdiction of a foreign sovereign with a U.S. citizen father, the U.S. citizen father can be a natural born U.S. citizen or a naturalized U.S. citizen. From the point of view of natural law and natural principles, such a child has a divided set of natural born affinities and loyalties. Due to the place of birth and the protections provided by the foreign sovereign at birth, the child acquired a natural affinity to the foreign sovereign and the place of birth in the foreign sovereign’s jurisdiction. In fact, such a child has the option to naturalize and adopt an allegiance and loyalties to the foreign sovereign while rejecting the allegiance to the father and the father’s sovereign United States. By comparison, a natural born citizen does not have such an option at birth and must expatriate after birth to naturalize in allegiance to the foreign sovereign. Due to this difference inherent to the circumstances of a birth abroad in the jurisdiction of a foreign sovereign, the father simply cannot transfer rights which were inherent to the birth of the child rather than being transferred form the father. This is why the frequently used description of transferring of the father’s rights is contrary to what is actually taking place.
“What about the OTHER legal experts and Constitutional law scholars who determine that he IS eligible? “
Go back to those people and ask them how they propose to make a naturalized U.S. citizen eligible for POTUS after the Supreme Court in United States v. Wong Kim Ark found such a child naturalized at birth is a naturalized citizen? Ted Cruz acquired his U.S. citizenship by the authority of the U.S. Immigration and Naturalization Act of 1952. You cannot be a naturalized U.S. citizen and a natural born U.S. citizen. you can only be one or the other, and the law quite clearly states Ted Cruz could acquire U.S. citizenship only by the U.S. Immigration and Naturalization Act of 1952. That makes Ted Cruz a naturalized U.S. citizen and ineligible for POTUS.
RE: The case of Wong Kim Ark
In United States v. Wong Kim Ark, 169 U.S. 649, the Supreme Court noted, “The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” With the terms undefined, INTENT is the proper method to determine the meaning of the terms.
Our constitution doesn’t specifically define “natural born citizen” but is framed in English common law in effect at the time, and under English common law the term “natural born citizen” is understood to be a citizen AT BIRTH.
In other words:
1) What was Cruz considered AT THE TIME OF HIS BIRTH?
2) Did he have to go through the naturalization process?
I believe the answer to #1 is American, and #2 is NO. He never had to APPLY for US citizenship.
Therefore, what was American Law at that time applies.
Blackstone defined “natural born subjects” as those born within the dominions of England, as amended by statute.
In a monarchy, citizens are called “subjects” while in a Republic, “subjects” are called “citizens.”
Americans stopped calling themselves “subjects” and began calling themselves “citizens”, consistent with the change in form of government from monarchy to republic.
Blackstone’s commentaries was the most authoritative source on English Common law for over a century. From William Blackstone (1765), Commentaries 1:354, 357-58, 361-62
The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance [sic], or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.
However, Blackstone also recognizes natural born citizenship for subjects born abroad. English common law is comprised of precedents, court decisions, AS AMENDED by statutes.
Also, Although the Fourteenth amendment facially only deals with persons born within the territory of the United States, it establishes a break from the original intent of the Constitution.
The Amendment was written, in part, to ensure the Civil Rights Act of 1866 would not be struck down by the Supreme Court or repealed by a future Congress.
In addition to breaking away from the original intent of the Constitution the Fourteenth Amendment also contained the Equal Protection Clause. The Equal Protection Clause, in a nutshell, states that two individuals, otherwise identically situated, cannot be treated unequally on the basis of inalienable characteristics. Gender is an inalienable characteristic, and so the distinction between natural born status based on paternity versus maternity now fails Constitutional muster and Senator Cruz is a natural born citizen based upon being born to a US citizen mother.
You may be thinking the Fourteenth Amendment only holds true to the states and the federal government is not bound by the Amendment; therefore, Senator Cruz is still ineligible since the original intent holds.
I will concede that as a technical matter, this is correct. However, the eligibility is established through the Fifth Amendment.
Historically, the Equal Protection clause was frowned upon by the Supreme Court. However, in modern jurisprudence the federal government has been bound to the Equal Protection Clause via the Fifth Amendment.
For instance, In Bolling v Sharpe (347 U.S. 947) the Supreme Court stated, “the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law[.]”
As the Fifth Amendment binds the Equal Protection Clause to the federal government the discrimination of natural born citizenship based on paternity versus maternity would never survive a strict scrutiny analysis and Senator Cruz is eligible to run.
HAVING SAID THE ABOVE .....
Those who argue the issue is not settled are correct. The issue has NOT been definitively addressed by the courts, and technically could be a live dispute if someone with standing were to raise the issue. This brings us to the good of the country aspect. Who can raise a dispute? A voter cannot. Neither can a PAC or similarly situated organization.
However, it’s conceivable that a state party, or less likely a county party, could seek a declaratory judgment that allowing Senator Cruz on the ballot is proper. A state party has the obligation to ensure that the candidates on the ballot are eligible for the position they seek. Seeking to declare they can put Senator Cruz on the ballot is an easy way to resolve the issue. As the state party is acting to include the candidate the legal action would be friendly, with only the state party and Senator Cruz being able to present evidence. Or Senator Cruz himself could seek such a judgment.
Please note that I am NOT advocating for a county or state party to initiate such an action. The purpose of this entry is simply to explain why Senator Cruz is eligible to hold the office of President, to establish how he is, and give an avenue for how the question can be definitively settled.
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