Yes, birthers, Ted Cruz IS a natural-born citizen of the U.S.

Lone Star Conservative ^ | Thursday, May 14, 2015 at 10:30 AM | Josh Painter

[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

[DiogenesLamp]

at least several times a week plus any court rulings that are issued when they are posted online.

Ex post facto court rulings won't change the correct meaning or intent of a document written in 1787. They won't even give you a good insight into it.

To get a good insight, you need to look at rulings close to that period, especially if made by people who participated in the convention/ratification discussions.

[DiogenesLamp]

I understand and respect your position. We are in uncharted waters now. It is anybody’s guess as to what would be best for us now.

[Nero Germanicus]

You have your theory and I have mine. That’s still allowed in America?

My theory is based on the 14th Amendment’s Citizenship Clause not changing anything in Article II, Section 1 but rather further defining it. Since 1868 there are only two types of U.S. citizenship: born and naturalized. Born citizens can be president or vice president and naturalized citizens cannot. The modern day term for the 18th century term “natural born citizen” is “Citizen of the United States At Birth.”
This is consistent with the point of view of the “Father of the Constitution,” James Madison who said in 1789: “It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.”— House of Representatives, May 22,1789 which was just two months after the Constitution went into effect.

Unless and until someone proves otherwise to Congress or in a court of law, Barack Obama was born in Hawaii because the state of Hawaii says so. The Full Faith and Credit Clause (Article IV, Section 1) gives states the right to determine their own records and have those records accepted in other jurisdictions.
U.S. law states that a person born outside the U.S. to a U.S. citizen parent and an alien parent qualifies as a Citizen of the United States At Birth as long as the citizen parent had lived in the U.S. for five years after the age of 14.
Since Ted Cruz’s mother, the former Eleanor Elizabeth Wilson, was a U.S. citizen born in Wilmington, Delaware, who had lived for at least a decade in the United States, he qualified for U.S. citizenship at birth under this condition.
Original intent can be gleaned from the first Naturalization Act which was adopted in 1790 and which excepted children born overseas to citizens from needing naturalization.
Senator Cruz is a natural born citizen because he was never naturalized and needed no naturalization.

[Plummz]

It’s right there in the article posted upthread.

[Nero Germanicus]

Actually I quoted one of those discussions in a post yesterday. The discussion came from a Supreme Court ruling.
James Madison’s notes from the Constitutional Convention confirmed that
in the constitutional convention, it was objected to that no number of years could properly prepare a foreigner for the presidency; but the counter argument was that men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of our institutions. So on the seventh of September, it was unanimously settled that foreign-born residents of fourteen years who should be citizens at the time of the formation of the Constitution are eligible to the office of President.”
Therefore it was length of time (14 years) of living in America that was the original intent of the Founders with regard to presidential eligibility as well as being “jus soli” (born here ).
Corroboration for the statements above (which are taken from George Bancroft’s 1882 publication History of the Formation of the Constitution...) are to be found in Vol. 5 of Johathan Elliott’s “Madison Papers,” page 462, 507, 512 and 521, and in Vol. 3 of Henry D. Gilpin’s “Madison Papers” pages 1398 , 1437 and 1516)

[Political Junkie Too]

Since 1868 there are only two types of U.S. citizenship: born and naturalized.

And I have one, too. That’s also allowed, right?

My theory doesn't necessarily conflict with yours, if you accept mine along with yours.

My theory is that the natural born clause in Article II is not intended as a definition of a type of citizen, as that would belong in Article I section 8. Instead, it is a only a qualification for the office, along with the age and residency qualification. Using the common understanding of the terms at the time, and coupling this with the intent stated in the Preamble that the Constitution was established to secure liberty to the People and their Posterity, it makes sense that the Frames meant the Presidency only for the Posterity of We the People.

This is a tighter requirement than simply citizen or naturalized citizen, just like citizen at least 35 years old is a tighter requiremeet than just citizen. So, natural born is an understood requirement for office, not a Constitutional definition of who is a citizen.

That's my theory. Don't bother with the retort of getting a court to agree with me. No court post-Obama ever would. Who knows what a pre-Obama court might have done.

-PJ

[Political Junkie Too]

Therefore it was length of time (14 years) of living in America that was the original intent of the Founders with regard to presidential eligibility...

That's a tricky use of original intent, because it ultimately did not pass. It was the intent of some, but not the body-at-large.

That's like the current SCOTUS declaring that the original intent of Congress was for federally subsidized exchanges, even though that was negotiated out of the final bill to get it passed. It was the intent of some, it was the intent of Democrats, but it was not the intent of the body-at-large that passed the bill.

-PJ

[Nero Germanicus]

By “original intent” I meant in reference to the Founders and Framers of the Constitution.
It DID indeed pass and become part of the Constitution in Article II, Section 1:
“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; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been FOURTEEN YEARS A RESIDENT within the United States.”

[Nero Germanicus]

I have no problem at all with anyone having their own theory and using it as a guide for who they believe is eligible to be president or vice president and who is not eligible.

Your theory is in line with the U.S. government’s position in the landmark Supreme Court decision from 1898, U.S. v Wong Kim Ark. The government’s attorneys asked the Supreme Court: “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.”—Government’s Briefs US v Wong Kim Ark

[Political Junkie Too]

Correct me if I'm wrong, but I thought your point was that the original intent was that age was irrelevant because no amount of time was sufficient to prepare one for the Presidency. I thought you cited the letters to demonstrate that original intent did not include the age requirement, but it was added late as if to suggest that it, and by extension the rest, of the qualifications for the Presidency were thrown together at the last minute.

My point is that it doesn't matter what anyone intended in private, what is passed by vote is what was intended.

-PJ

[Political Junkie Too]

“Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution...

My theory is not that literal. Posterity of We the People does not mean the direct descendants of the original citizens.

"We the People" is a term of art to represent the citizens at large - at any time. The Posterity of We the People means the children of citizens. A foreign-born naturalized citizen becomes one of the body of We the People, and then their future children (their posterity) are natural born citizens.

-PJ

[DiogenesLamp]

You have your theory and I have mine. That’s still allowed in America?

You are entitled to believe anything you want, but this does not make you correct.

My theory is based on the 14th Amendment’s Citizenship Clause not changing anything in Article II, Section 1 but rather further defining it.

As that is changing it, and therefore I regard that as an invalid theory. Changes must be explicit, not accidental.

Since 1868 there are only two types of U.S. citizenship: born and naturalized. Born citizens can be president or vice president and naturalized citizens cannot. The modern day term for the 18th century term “natural born citizen” is “Citizen of the United States At Birth.”

"Born" is not "natural born." You can be a "born" citizen according to a statute, yet not be a "natural" citizen. All the Anchor babies are "born" citizens according to the modern courts.

This is consistent with the point of view of the “Father of the Constitution,” James Madison who said in 1789: “It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.”— House of Representatives, May 22,1789 which was just two months after the Constitution went into effect.

We've been through this. Madison also noted that the man's ancestors had been citizens of South Carolina for generations, William Smith cited Vattel himself in support of his claim.

Madison said what he needed to say to get support for his friend and political ally, but when he had a chance to actually *ACT* on this opinion, he did the exact opposite.

You are well familiar with the James McClure episode, but what you don't know is what Madison was doing as Secretary of State before he became President. He was demanding that everything possible be done to weed out the false claims of American Citizenship by British subjects. You should read some of his letters between him and Monroe. It was a major problem of that time. British agents were constantly showing up with Seaman Papers and claiming to be American, and the Napoleon government was getting pissed about it. They suspected the US was collaborating with the British to spy on them.

No, Madison subsequently took a very different approach to dealing with the issue. Mere birth on the soil wasn't good enough for President Madison or Secretary of State Madison.

Unless and until someone proves otherwise to Congress or in a court of law, Barack Obama was born in Hawaii because the state of Hawaii says so.

They also say they will give birth certificates to people who aren't born there, and there is nothing to compel them to speak the truth in this regard. As a matter of fact, looking at the huge numbers of efforts they have made to avoid stating anything plainly, I believe it ought to convince any reasonable person that they are lying about this particular example.

Nobody uses so many conditional statements unless they are hiding something.

Original intent can be gleaned from the first Naturalization Act which was adopted in 1790 and which excepted children born overseas to citizens from needing naturalization.

And here you go with that upside down backwards double flip with a half twist logic.

This obviously doesn't sound ridiculous to you, but I think you would have a tough sell with that one even among the people who mostly agree with your position.

You are alleging that the target of a "Naturalization Act" are the people who do not need naturalization. Well who is getting naturalized then? Nobody? Why call it a "naturalization" act, if nobody is getting naturalized?

I just shake my head and bemoan the fact that your opinion carries as much weight as my own with the uninformed.

[DiogenesLamp]

I saw that, and intended to look up those references. I’ll have to remind myself to do it.

[Nero Germanicus]

What I believe and think bears little resemblance to what you thought I was saying.

Let me try to restate my premise. Original intent of the Founders and Framers is expressed via the Naturalization Act of 1790 which said: “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”.

It was 19th century historian George Bancroft, who had been a Secretary of the Navy and the founder of the United States Naval Academy at Annapolis who wrote in his book: A History of the Formation of The Constitution of the United States of America, which was published in 1882 that the constitutional convention voted unanimously that foreigners who had lived in the United States for fourteen years at the time of the ratification of the Constitution could be eligible to be president/vice president. Bancroft states that the reason for the Framers voting that way was the realization that foreigners had shed their blood and died in the fight for American freedom and the establishment of the new republic.

[Yosemitest]

Ted Cruz IS a United States NATURAL BORN Citizen, and that's ALL that matters.
The answer to your question is NOT GERMANE to the LEGALITY of TED CRUZ's CITIZENSHIP.
It's JUST that SIMPLE !
So take your smoke and mirrors somewhere else, like say the D.U. where they use those tactics ALL THE TIME !

[Nero Germanicus]

They didn’t mean it literally either. “Descendants” does not imply only direct descendants.

[Nero Germanicus]

Excellent!
George Bancroft’s book, History of the Formation of the Constitution... (Volume 2) can be read online: https://archive.org/details/historyofcons02banc

[precisionshootist]

"Since 1868 there are only two types of U.S. citizenship: born and naturalized. And I have one, too. That’s also allowed, right? My theory doesn't necessarily conflict with yours, if you accept mine along with yours. My theory is that the natural born clause in Article II is not intended as a definition of a type of citizen, as that would belong in Article I section 8. Instead, it is a only a qualification for the office, along with the age and residency qualification. Using the common understanding of the terms at the time, and coupling this with the intent stated in the Preamble that the Constitution was established to secure liberty to the People and their Posterity, it makes sense that the Frames meant the Presidency only for the Posterity of We the People. This is a tighter requirement than simply citizen or naturalized citizen, just like citizen at least 35 years old is a tighter requiremeet than just citizen. So, natural born is an understood requirement for office, not a Constitutional definition of who is a citizen. That's my theory. Don't bother with the retort of getting a court to agree with me. No court post-Obama ever would. Who knows what a pre-Obama court might have done. -PJ "

Totally agree. Natural Born Citizen is the level of purity of citizenship not a "type" of citizenship. Also the historical record for the definition of NBC is born to two citizen parents.

People keep looking for laws and court cases to support a completely illogical position. Someone born of one citizen parent on foreign soil or someone born and raised by two citizen parents in Dallas Texas are clearly not the same thing. Both are citizens at birth but not even close to the same level of purity.

[Nero Germanicus]

“You are entitled to believe anything you want, but this does not make you correct.”

---

As soon as any institution of our society or any person in a position to directly influence an outcome (for example, a local, state or federal prosecuting attorney or a member of Congress) agrees with your beliefs, I’ll give them credence.

[DiogenesLamp]

Excellent! George Bancroft’s book, History of the Formation of the Constitution... (Volume 2) can be read online: https://archive.org/details/historyofcons02banc

Well that will certainly make the job easier. I don't even have to hunt for it. Thanks for that. I'll look at it directly.