CATO Institute & Daily Caller Declares Foreign-Born Persons Eligible To Be President

Obama Release Your Records ^ | 8-27-2013 | llya Shapiro

[Cold Case Posse Supporter]

As we head into a potential government shutdown over the funding of Obamacare, the iconoclastic junior senator from Texas — love him or hate him — continues to stride across the national stage. With his presidential aspirations as big as everything in his home state, by now many know what has never been a secret: Ted Cruz was born in Canada.

But does that mean that Cruz’s presidential ambitions are gummed up with maple syrup or stuck in snowdrifts altogether different from those plaguing the Iowa caucuses? Are the birthers now hoist on their own petards, having been unable to find any proof that President Obama was born outside the United States but forcing their comrade-in-boots to disqualify himself by releasing his Alberta birth certificate?

No, actually, and it’s not even that complicated; you just have to look up the right law. It boils down to whether Cruz is a “natural born citizen” of the United States, the only class of people constitutionally eligible for the presidency. (The Founding Fathers didn’t want their newly independent nation to be taken over by foreigners on the sly.)

What’s a “natural born citizen”? The Constitution doesn’t say, but the Framers’ understanding, combined with statutes enacted by the First Congress, indicate that the phrase means both birth abroad to American parents — in a manner regulated by federal law — and birth within the nation’s territory regardless of parental citizenship. The Supreme Court has confirmed that definition on multiple occasions in various contexts.

Snip~

So the one remaining question is whether Ted Cruz was a citizen at birth. That’s an easy one. The Nationality Act of 1940 outlines which children become “nationals and citizens of the United States at birth.”

[Sherman Logan]

"It is not necessary that a man should be born in this country, to be 'a natural born citizen.' It is only requisite that he should be a citizen by birth, and that is the case with all the children of citizens who have ever resided in this country, though born in a foreign country."

In general I agree with your position. But there is a problem with applying this quote directly to Cruz.

At the time of the Constitution, the common law of the states viewed the citizenship of husbands and wives quite differently. In fact, a wife was often considered to automatically take her husband's citizenship upon marriage, since the two were legally considered to be one person under the doctrine of coverture.

IOW, there is considerable question whether under constitutional original intent Cruz (and Obama) would have inherited American citizenship from their American mothers under jus sanguinis. I believe Obama was a citizen under jus solis, but Cruz obviously is not.

During the 19th and early 20th century Congress passed laws that automatically stripped women of US citizenship when they married a man of foreign citizenship, at least if they resided outside USA.

http://en.wikipedia.org/wiki/Expatriation_Act_of_1868

http://en.wikipedia.org/wiki/Expatriation_Act_of_1907

These provisions were repealed in 1922, so it obviously doesn't apply directly to Cruz, but its passage indicates very strongly that as late as 1907 the citizenship status of women, and therefore their ability to pass citizenship to their children via jus sanguinis, was viewed as being changed by marriage to an alien in a way that a man marrying an alien did not affect him or his children. Which implies that inheritance of citizenship from mother as opposed to father would have been viewed differently by the Founders.

[Jeff Winston]

At the time of the Constitution, the common law of the states viewed the citizenship of husbands and wives quite differently. In fact, a wife was often considered to automatically take her husband's citizenship upon marriage, since the two were legally considered to be one person under the doctrine of coverture.

You are correct.

IOW, there is considerable question whether under constitutional original intent Cruz (and Obama) would have inherited American citizenship from their American mothers under jus sanguinis. I believe Obama was a citizen under jus solis, but Cruz obviously is not.

You are correct.

During the 19th and early 20th century Congress passed laws that automatically stripped women of US citizenship when they married a man of foreign citizenship, at least if they resided outside USA.

You are correct. Actually, some women who were born in the United States and never left the country were stripped of their natural born US citizenship.

These provisions were repealed in 1922, so it obviously doesn't apply directly to Cruz, but its passage indicates very strongly that as late as 1907 the citizenship status of women, and therefore their ability to pass citizenship to their children via jus sanguinis, was viewed as being changed by marriage to an alien in a way that a man marrying an alien did not affect him or his children. Which implies that inheritance of citizenship from mother as opposed to father would have been viewed differently by the Founders.

You are correct.

Now, having acknowledged all of what you said, we need to return to Bayard's original, and main point.

His main point was that you didn't have to be born in the United States to be a natural born citizen and eligible to be President.

It was only required, Bayard said, that a person be a CITIZEN BY BIRTH.

Then he added that this was the case with all children of US citizens who had ever lived in the United States.

It is also the case with Ted Cruz.

So it matters not that the criteria for who was a CITIZEN BY BIRTH have changed somewhat from the Founding Era until now. Ted Cruz is every bit as much a CITIZEN BY BIRTH as anyone who was a citizen by birth in Bayard's day.

[Sherman Logan]

I generally agree, but IMO the case is not self-evident.

IOW, I think the Supremes need to rule on it to settle the issue definitively.

Such rulings are exactly what the Supremes are supposed to do, define the meaning of the Constitution in cases where its language is open to interpretation.

Up to 1922 Cruz would have apparently NOT automatically inherited citizenship from his mother, based on the Expatriation Acts, since she might not have been a citizen when he was born. Which means these laws would have been overriding the Constitution, by your interpretation of its meaning. For you to be correct, they would have had to be unconstitutional, which is of course perfectly possible.

My basic point is not that Cruz is not NBC, I’m agnostic on the issue. It is that he meets fewer of the possible qualifications for NBC than Obama does. Which makes it really difficult to say Obama is ineligible, but Cruz is.

[DiogenesLamp]

Cruz had American citizenship at birth.

He was collectively naturalized by the citizenship act of 1934 which thereafter automatically naturalized any child born in a foreign country to an American woman.

Citizenship which comes from a Congressional law *IS* naturalization.

[DiogenesLamp]

CAT also supports Open Borders, Illegal Alien Amnesty, and economically destructive Free Trade policies. How people think the are anything conservative when they are quite liberal on most issues

I agree. The fact that CATO supports something is a very good reason to be against it. The only places where CATO and conservatives overlap are in issues of finance, and not always there.

[DiogenesLamp]

About the Founders and being NBC, they thought this... "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".

With one condition. They couldn't have a foreign father. Look it up.

[DiogenesLamp]

“The statute under which Bellei was stripped of his citizenship was repealed by the U.S. Congress in 1978.”— Wikipedia So Rogers v Bellei was case law for eight years and then it was rendered moot by congressional action.

So in the paradoxical legal world that you inhabit, Congress can flip a switch and convert a non Natural citizen into a natural one? (Even though he and the mother STILL have conditions?)

This is why people hate lawyers.

[DiogenesLamp]

And you can pretty much bank on anything written by Jeff Winston is an attempt to mislead.

And here is Jeff doing his BLATANT LYING. He quotes James Bayard's book in a misleading manner.

"It is not necessary that a man should be born in this country, to be 'a natural born citizen.' It is only requisite that he should be a citizen by birth, and that is the case with all the children of citizens who have ever resided in this country, though born in a foreign country."

Here is how he lies. He equates "Citizen by birth" without defining the term. According to the Understanding of James Bayard, and According to the Understanding of his son Thomas, The ONLY way to be a "citizen by birth" was to have an American father.

United States Secretary of State Thomas F. Bayard.

Jeff knows this. He's had it beaten into his head about twenty times in the last week. Jeff is lying about this because he knows what is the truth and still repeats what is false.

Bottom line. Jeff LIES to make his point. He can't do it without lying because his point is factually wrong.

[DiogenesLamp]

Quoting Jeff, who's misleadingly quoting Bayard as though Bayard supports Jeff's position:

"It is not necessary that a man should be born in this country, to be 'a natural born citizen.' It is only requisite that he should be a citizen by birth, and that is the case with all the children of citizens who have ever resided in this country, though born in a foreign country."

Sheman Logan says:
In general I agree with your position.

Then you are wrong. Here is the ruling made by Secretary of State Thomas F Bayard (James Bayard's son. James Bayard taught Son Thomas the law, and Son Thomas worked with father James at his law practice for many years.)

United States Secretary of State Thomas F. Bayard.

There is more at this link.

Bottom line, the considered opinion of the United States Secretary of State, and Son of James Bayard who wrote the book above quoted was that a child must have an AMERICAN father (or one undergoing the naturalization process) to be regarded as an American citizen.

Thomas Bayard is quite clear on this. There is no fudging or getting around the fact that the requirement of an American father is an absolute necessity according to Thomas Bayard.

[Rides3]

Jeff, you’ve already tried foisting that nonsense in another thread.

Here’s the historic fact of U.S. Secretary of State Bayard determining that one born in the U.S. to an alien father was NOT even a U.S. citizen at all:

“The son, therefore, so far as concerns his international relations, was at the time of his birth OF THE SAME NATIONALITY AS HIS FATHER. Had he REMAINED in this country till he was of full age and then ELECTED an American nationality, he would on the same general principles of international law be now clothed with American nationality.

...”By section 1992, Revised Statutes, enacted in 1866 — “All persons born in the United States, AND NOT SUBJECT TO ANY FOREIGN POWER, excluding Indians not taxed, are declared to be citizens of the United States.”

By the Fourteenth Amendment of the Constitution of the United States ratified in 1868 — “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 in which they reside.”

Richard Greisser was no doubt born in the United States, but he was on his birth “SUBJECT TO A FOREIGN POWER” and “NOT SUBJECT TO THE JURISDICTION OF THE UNITED STATES.” He was NOT, therefore, under the statute and the Constitution a citizen of the United States by birth; and it is NOT pretended that he has any other title to citizenship.”

Source: A Digest of the International Law of the United States
http://books.google.com/books?id=wdgxAAAAIAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

If one born in the U.S. to an alien father isn’t born a citizen because at birth was “SUBJECT TO A FOREIGN POWER,” it would stand to reason that one born abroad “SUBJECT TO A FOREIGN POWER” likewise isn’t born a citizen.

Plain as day. BOTH Obama and Cruz are Constitutionally INELIGIBLE.

[Rides3]

“””Actually, some women who were born in the United States and never left the country were stripped of their natural born US citizenship.”””

Correct, and this is how that was resolved...

USCIS CURRENTLY clarifies the following federal statute:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That hereafter a woman, being a native-born citizen. who is believed to have lost her United States citizenship solely by reason of her marriage prior to September 22, 1922, to an alien, and whose marital status with such alien has or shall have terminated or who has resided continuously in the United States since the date of such marriage, shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922.”
http://books.google.com/books?id=a1Aclme7AMkC&lpg=PA173&ots=onepage&q=173&f=false page 173

By CURRENTLY stating the restored U.S. citizenship of such persons as thus:

“The words “shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922”, as they appeared in the 1936 and 1940 statutes, are prospective and restore the status of native-born or natural-born citizen (whichever existed prior to the loss) as of the date citizenship was reacquired.”
http://web.archive.org/web/20130314041654/http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45077/0-0-0-48575.html

Native-born citizen (born in U.S.) IS currently broken down into two different sub-classifications: native-born citizen OR natural-born citizen. One OR the other.

Direct, current proof that NOT all native-born citizens are natural-born citizens.

[Sherman Logan]

This is the legal opinion of a Secretary of State, not a judicial decision.

If you read the context, he is also basing his opinion primarily on “international law,” not on the US Constitution. Which I thought conservatives objected to.

This was also around the same period when US women (but not men) who married a foreigner automatically lost their citizenship per laws passed by Congress. Do you think that was, or should be, constitutional?

[DiogenesLamp]

It was only required, Bayard said, that a person be a CITIZEN BY BIRTH.

And once more, you are LYING about what Bayard understood that to be. Bayard never contemplated a law proclaiming someone to be a "citizen at birth." Under Bayard's understanding, the ONLY way to be a "citizen at birth" was to be born of an American father.

Now you come along and assert that the NATURALIZATION LAW which Congress passed in 1934 and that collectively naturalizes anyone born in a foreign country of an American mother means the EXACT SAME THING as Bayard's understanding of "Citizen at birth."

And this is why we regard you as a habitual liar. You constantly make these equivocations between one thing and another without taking into account the fact that they are very different.

[BuckeyeTexan]

I don’t know your posting history with respect to eligibility discussions or the history of your interactions with LVR.

In reviewing your comment and LVR’s reply on this thread, however, it seems to me that he may have misunderstood your post.

With that said, you signed up in 2012 and so haven’t been involved in the FReeper eligibility research and discussions that have been going on since 2008. In my experience, that automatically makes you suspicious to FR “birthers.”

I do hope FReepers can be civil discussing Cruz’s eligibility. Otherwise, there will likely be a zot thread because JR has already stated his opinion about Cruz. It would be foolish to push him on the matter.

[Rides3]

More than one Secretary of State has made that same determination.

International law is cited because such a birth is an international occurrence; a birth in a country which applies jus soli citizenship law to those born within its jurisdiction who have no foreign allegiance, to an alien father whose country asserts worldwide jus sanguinis citizenship law.

Such an occurrence is not a domestic event, it’s an international event. That’s why the cases are discussed in A Digest of the International Law of the United States.

There is nothing in the Constitution which states that one born in the U.S. subject to a foreign power is a U.S. citizen at birth. In fact, the very reason for the Secretaries of State determining that such persons were NOT citizens by birth in the U.S. is exactly BECAUSE they were at birth “SUBJECT TO A FOREIGN POWER” and “NOT SUBJECT TO THE JURISDICTION OF THE UNITED STATES” within the meaning of complete jurisdiction intended by Trumbull and the Senate Judiciary Committee when the 14th Amendment was introduced.

Senate Judiciary Committee Chairman Trumbull: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”
http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14

Trumbull’s role in drafting and introducing the Civil Rights Act of 1866 and the 13th and 14th Amendments:
http://www.judiciary.senate.gov/about/history/

[Sherman Logan]

“NOT SUBJECT TO THE JURISDICTION OF THE UNITED STATES”

I believe this phrase has been generally defined by the courts as excluding only those with diplomatic immunity, which by definition excludes them from US jurisdiction. Anybody else in this country is subject to its jurisdiction, as they will quickly find out if caught in criminality.

I agree the other interpretation is not illogical. I’m just pointing out that trying to overturn many decades of judicial precedent in such cases is pretty tough.

I should point out that common law provides another exclusion, which is children born to members of an invading army on US soil. That is not at present a big problem. :)

[Sherman Logan]

Thanks for an intelligent and reasonable post.

[BuckeyeTexan]

Which implies that inheritance of citizenship from mother as opposed to father would have been viewed differently by the Founders.

It was viewed differently. The 1790 Congressional legislation to which many refer included the following caveat:

Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.

[Sherman Logan]

True.

But that provision would not have applied to Cruz, whose father lived in US before and after his birth in Canada.

Our outlook for almost all legal issues today makes no distinction by sex. It was very different in 1783.

[Sherman Logan]

Acckkk.

Make that 1787. I really do know the difference.

Apparently I had a “57 states” moment. :)