Posted on 05/14/2015 8:44:18 AM PDT by Josh Painter
This should not even be an issue any longer, but there are still some out there who didn't get the legal memo.
First, some history:
The origins of the Natural Born Citizenship Clause date back to a letter John Jay (who later authored several of the Federalist Papers and served as our first chief justice) wrote to George Washington, then president of the Constitutional Convention, on July 25, 1787. At the time, as Justice Joseph Story later explained in his influential Commentaries on the Constitution, many of the framers worried about “ambitious foreigners who might otherwise be intriguing for the office.” “Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the American army shall not be given to nor devolve on, any but a natural born Citizen,” Jay wrote.
Washington thanked Jay for his hints in a reply dated September 2, 1787. Shortly thereafter, the natural-born citizenship language appeared in the draft Constitution the Committee of Eleven presented to the Convention. There is no record of any debate on the clause.
To make a long story short, the question boils down to a matter of intent:
While it is possible to trace the origins of the Natural Born Citizenship Clause, it is harder to determine its intended scope—who did the framers mean to exclude from the presidency by this language? The Naturalization Act of 1790 probably constitutes the most significant evidence available. Congress enacted this legislation just three years after the drafting of the Constitution, and many of those who voted on it had participated in the Constitutional Convention. The act provided that “children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural-born citizens.” There is no record of discussion of the term natural born citizen, but it is reasonable to conclude that the drafters believed that foreign-born children of American parents who acquired citizenship at birth could and should be deemed natural born citizens.
In conclusion:
What can we expect if Senator Cruz or another similarly situated candidate runs for president in 2016? Undoubtedly, the controversy will continue with passionate advocates on both sides of the issue. A scholarly consensus is emerging, however, that anyone who acquires citizenship at birth is natural born for purposes of Article II. This consensus rests on firm foundations. First, given Jay’s letter and the language of the 1790 naturalization act, it seems evident that the framers were worried about foreign princes, not children born to American citizens living abroad. Second, the 14-year residency requirement Article II also imposes as a presidential prerequisite ensures that, regardless of their place of birth, would-be presidents must spend a significant time living in the United States before they can run for office.
Concurring:
Two former top Justice Department lawyers say there is “no question” Ted Cruz is eligible for the presidency, in a new Harvard Law Review article that seeks to put to rest any doubt about the Texas Republican. “Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a ‘natural born citizen’ within the meaning of the Constitution,” write Neal Katyal and Paul Clement in an article published March 11. “There are plenty of serious issues to debate in the upcoming presidential election cycle. The less time spent dealing with specious objections to candidate eligibility, the better.”
[...]
The Harvard Law Review article is notable because it is a bipartisan assessment that Cruz meets the Constitution’s requirement that the president be a “natural born citizen.” Katyal was an acting solicitor general in the Obama administration from May 2010 to June 2011. Clement was solicitor general from 2004 to 2008 in the Bush administration and is, perhaps, best known nationally among conservatives for arguing the case against President Obama’s health care law before the Supreme Court in 2012.
Katyal and Clement review the intent and meaning behind “natural born citizen,” going back to the Founding Fathers. The question about citizenship and presidential eligibility has also affected Barry Goldwater, George Romney and John McCain over the years — and all met the constitutional test.
Katyal and Clement conclude in their article:
As Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase “natural born Citizen” in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent — whether in California or Canada or the Canal Zone — is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose. Finally, another bipartisan consensus:
Legal scholars are firm about Cruz’s eligibility. “Of course he’s eligible,” Harvard law professor Alan Dershowitz tells National Review Online. “He’s a natural-born, not a naturalized, citizen.” Eugene Volokh, a professor at the UCLA School of Law and longtime friend of Cruz, agrees, saying the senator was “a citizen at birth, and thus a natural-born citizen — as opposed to a naturalized citizen, which I understand to mean someone who becomes a citizen after birth.” Federal law extends citizenship beyond those granted it by the 14th Amendment: It confers the privilege on all those born outside of the United States whose parents are both citizens, provided one of them has been “physically present” in the United States for any period of time, as well as all those born outside of the United States to at least one citizen parent who, after the age of 14, has resided in the United States for at least five years. Cruz’s mother, who was born and raised in Delaware, meets the latter requirement, so Cruz himself is undoubtedly an American citizen. No court has ruled what makes a “natural-born citizen,” but there appears to be a consensus that the term refers to those who gain American citizenship by birth rather than by naturalization — again, including Texas’s junior senator.
Case closed. Bye bye, birthers,
- JP
And ... his parents were married, (to EACH OTHER):)
“Character counts! Works for ME!
To me, he’s a Texan and that’s all that matters—LOL!
I used to think many people were just ignorant on this issue. That the number of FReepers especially who insist Ted is not eligible were just uninformed. But this issue has been hashed out for years now. Especially with the Kenyan as president. And so anyone who argues Obama and/or Cruz is not a NBC is a fool and a troll.
Already many trolls here at FR who insist Cruz is not qualified have been zotted for their agitating. I'm sure many more will follow.
There are only two types of citizens: natural born, and naturalized. If Cruz is a citizen, and he was never naturalized, then that logically only leaves one possibility.
Thus, an individual born to a U.S. citizen parent -- whether in California or Canada or the Canal Zone -- is a U.S. citizen from birthUS statutes condition the granting of citizenship to children born abroad, when the citizenship of parents is mixed. Just saying, the law isn't as cut and dry as the article asserts.
"...natural born citizen..."
After obama, what difference, at this point, does it make?
To me, he’s a Texan and that’s all that matters—LOL!
****************
So was LBJ. How did you feel about him? just joshing you, take care.
you’re just saying that to make the paulistas mad at ya!
And his social security card isn’t that of a dead man.
Thank you for that. It was never quite clear during the Obama birth certificate hunt whether there were two types of citzenship, natural born and naturalized, or if there was a third type of citizenship at birth which wasn't natual born for some reason. Since the exact term "natural born" only applied to the requiremnents for president and vice president I had seen no statute which clearly defined it. That 1790 law comes as close as I have seen and makes it pretty clear that natural born and citizen at birth are the same and there are only two types of citizenship.
Democrats are nothing if not hypocrites. They would be, and probably still are, willing to attack Cruz on citizenship. They considered it with McCain for being born in the Canal Zone and even considered for Goldwater for having been born in Arizona Territory rather than in a state.
But, at this point, what differences does it make, who cares and why?
Yes, it is cut and dried - one more time:
My grandson was born in London to my son who is an American citizen and to his mother, a British citizen. On the day of his birth, he was recorded as a British citizen AND an American citizen and was issued an American passport on that day of his birth.
When a child is born in a hospital, parents fill out a form declaring him a citizen and the hospital sends that form to the government - the hospital itself cannot make a baby a citizen of any country. On the day of my grandson's birth, two forms were sent, one to the British government making him a British citizen AND, at the American Embassy, one sent to the American government making him an American citizen.
Cruz was made an American citizen exactly as my grandson was made an American citizen.
When grandson arrives to this country by plane, he goes to the American citizen line to enter the country. If his mom comes, she has to go to the non-citizen line to enter the country.
I note that the law uses the plural; it doesn't say "children of a citizen," it says "children of citizens." An ambiguity, no doubt.
The closest contemporary writing to the ratification of the Constitution on the subject of natural born citizens being of two citizen parents is Thomas Paine's 1791 book The Rights of Man, written just two years after ratification.
From The Rights of Man, The Rights Of Man, Chapter 4 — Of Constitutions. While it doesn't have the authority of the law that Congress passed in 1790, it is a window into it's contemporary understanding.
If there is any government where prerogatives might with apparent safety be entrusted to any individual, it is in the federal government of America. The president of the United States of America is elected only for four years. He is not only responsible in the general sense of the word, but a particular mode is laid down in the constitution for trying him. He cannot be elected under thirty-five years of age; and he must be a native of the country.Yes, Paine did use the term "native of the country." Does this mean "native born" instead of "natural born?" We have to look at the following statements to answer that question.In a comparison of these cases with the Government of England, the difference when applied to the latter amounts to an absurdity. In England the person who exercises prerogative is often a foreigner; always half a foreigner, and always married to a foreigner. He is never in full natural or political connection with the country, is not responsible for anything, and becomes of age at eighteen years; yet such a person is permitted to form foreign alliances, without even the knowledge of the nation, and to make war and peace without its consent.
But this is not all. Though such a person cannot dispose of the government in the manner of a testator, he dictates the marriage connections, which, in effect, accomplish a great part of the same end. He cannot directly bequeath half the government to Prussia, but he can form a marriage partnership that will produce almost the same thing. Under such circumstances, it is happy for England that she is not situated on the Continent, or she might, like Holland, fall under the dictatorship of Prussia. Holland, by marriage, is as effectually governed by Prussia, as if the old tyranny of bequeathing the government had been the means.
The presidency in America (or, as it is sometimes called, the executive) is the only office from which a foreigner is excluded, and in England it is the only one to which he is admitted. A foreigner cannot be a member of Parliament, but he may be what is called a king. If there is any reason for excluding foreigners, it ought to be from those offices where mischief can most be acted, and where, by uniting every bias of interest and attachment, the trust is best secured. But as nations proceed in the great business of forming constitutions, they will examine with more precision into the nature and business of that department which is called the executive. What the legislative and judicial departments are every one can see; but with respect to what, in Europe, is called the executive, as distinct from those two, it is either a political superfluity or a chaos of unknown things.
Paine refers to Engish examples in order to define this. Paine cites "foreigner" and "half a foreigner" as the oppposite to "full natural" connection to the country. So, what is "half a foreigner?"
It seems to me that "half a foreigner" is a person with one parent who is a citizen and one parent who is not. This person does not have have a "full natural... connection with the country."
Paine wrote plainly of why the Framers did not want "half-foreigners" to be president, and why only people with a "full natural... connection with the country" were allowed to become President.
Paine was widely recognized as the most influential writer of the time of Independence because of his plain writing style that resonated with the common person.
Paine's description of the meaning of Article II was written in 1791, and I take it to be reflective of the common understanding of the time. This was, after all, written just two years after the ratification of the Constitution and a year after the law passed in 1790. If Paine said that natural born citizens meant both parents were citizens, then that was the plain meaning.
-PJ
A very true and accurate summary of the confusion that reigned during those debates. It also didn't help matters that there were Birth Certificate questions running parallel with the argumentation above. It all made it a confused mess.
I too feel grateful for this post. The portion in bold you explained is indeed the critical portion that kept the, shall we call them "ONBC deniers" (for Obama Natural Born Citizen) going. This is in contrast to, say, the "BC deniers" (Birth Certificate deniers" the arguments of which are not affected by this post. Both are considered "birthers" though.
While there may indeed be some valid concerns surrounding his birth certificate, I don't see any benefit in pursuing such prosecution now. He's going to be gone less than two years. I'll be sure to duck all un-founded accusations of disrespect for the Constitution.
It's time to focus on the extremely difficult (if not impossible) task of rebuilding this nation. Cruz is a part of that plan. No sense in arguing about "preserving the Constitution" if there's none of it left to preserve.
I’ve come to believe that this is only an issue for those who don’t support Cruz anyway.
amazing how such a simple concept can be twisted
a natural born citizen is a citizen naturally... AS THERE ARE NO ALTERNATIVES
every other office defined by the Constitution used the term ‘citizen’ as a requirement. only the office of the president was different, requiring a ‘natural born citizen’.
why?
well, the founders discussed it. they wanted to insure the person that assumed the office wouldn’t have split allegiances, at least by birth. they also wanted to insure the king of england would NEVER be able to be president of the United States.
the second part can be used as a simple logic test helping to verify the first. that being, both parents must be citizens and the child must be born on the soil.
as a test, look at prince william and kate. if they flew to NYC and she gave birth then flew home... their child could be the future king of england. if he moved to the US when he was 20 and ran for president at 34... he would be eligible IF the rules being applied to 0bama, TCruz and others were used. obviously, this is the EXACT scenario the founders wanted to avoid.
of course, TCruz will be promoted as the main candidate for the right. he will (and is) making all the right noises we want to hear. it’s red meat.
the goal for the left would be for TCruz to get the nomination... then disqualify him just after the primaries. this will allow EWarrent to win on a walk in november as the right will be too confused
In 1957, Rafael Bienvenido Cruz (Ted Cruz's father) decided to get out of Cuba by applying to the University of Texas.
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