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
Really? And what piece of information convinced you otherwise? You must have seen something different that I haven't yet seen. I would like to know what it is, because all my research has yielded the opposite result.
I agree. You don't toss out a slap to people's faces then run away and hide from the storm you created.
When the "damaging" information relates to constitutional eligibility to hold office, it is no longer just a matter for the opposing candidates, it becomes the duty of all US Citizens to resolve the issue, and most especially state officials who's duty it is, or ought to be. (The courts are wrong on this one, but they often are.)
In the case of Obama, all 50 state officials simply wanted this cup to pass before them because they didn't want to be the schmuck who messed up the chances for the first "Black" President to get elected.
They didn't want to be the bad guy because too many people were idolizing him by this point.
And what document is that?
I think you are just dancing around the point. I don't think the Wong Kim Ark court would have regarded him as a resident. Certainly Chief Justice John Marshall wouldn't have agreed that he was a resident.
The state of Hawaii prepared Certified Letters of Verification for two states’
Chief Election Officials, the Secretaries of State in Arizona and Kansas. An additional Certified Letter of Verification was prepared for a federal judge in Mississippi and all nine judges of the Alabama Supreme Court received a copy of the Mississippi federal court letter.
At any point in time, in order to implement the constitutional imperative, any Committee of Congress could issue a congressional subpoena for the original birth certificate and require past and present Hawaii officials to answer questions under oath. Congressional subpoenas have the force of court orders.
Finally it only takes one Senator and one Representative to challenge the electors in any state by a written objection. Congress could have refused to certify Obama’s electors in enough states to take him below the 270 threshold until Congress was convinced of his birth certificate’s authenticity.
Of course with John Boehner and Mitch McConnell running the congresdional loyal opposition, that was unlikely to happen.
“The state of Hawaii says that the President was born there. That’s good enough for me.””— John Boehner on Meet The Press
Wong Kim Ark’s parents returned to China and never again returned to the United States.
It is like suggesting congress has the power to define "arms" or "speech."
If the Constitution granted Congress the power to establish rules for keeping and bearing arms or speaking freely, I might ask those questions, but it doesn't. The Constitution explicitly prohibits Congress from establishing rules that infringe upon those rights.
Whereas, the Constitution grants Congress the power to establish a uniform rule of naturalization, which means not only that Congress has the power to say who must naturalize but also that Congress has the power to say who does not need to naturalize.
As Justice Gray wrote, there has never been any doubt that children born in a country of citizen parents are natural-born citizens. There have, however, been doubts as to all others. Thus the need for a uniform rule of naturalization.
Congress did not pass a measure regarding McCain. They passed a resolution which had no legally binding power.
None of this constitutes proof. The letters only affirm that the information is in their records. It does not establish whether that this is the ORIGINAL information in the records, or whether it was placed there at a later time.
Again, there are a lot of false equivalences allowed by Hawaiian law that other people would not allow if they were aware of them.
Being born anywhere will get you a Hawaiian birth certificate. Showing your child to a physician up to a year after he is born will get that physician's signature on the Hawaiian birth certificate. No actual birth in Hawaii is necessary.
Both of these things are contrary to people's instinctive understanding. They do not actually comply with the normal understanding of "born there", but Hawaii grants them the false equivalence of meaning the same thing under Hawaiian law.
Again, we are only interested in real meanings under Constitutional law, not fake, made up meanings under Hawaiian law. Hawaiian officials attesting to lose meanings allowed under Hawaiian law are not valid proof of anything.
“The state of Hawaii says that the President was born there. That’s good enough for me.””— John Boehner on Meet The Press
Did I mention that I thought John Boehner is an unethical idiot who isn't concerned with compliance to the rule of law?
“The Democrat ALWAYS gets that same percentage of the Asian and Latino vote, and while we’re at it, the same percentage of the Jewish and Black vote as well. It rarely changes more than a few points one way or the other. This is the norm.”
The Black vote for Republican Presidential candidates 1936-2012
1936: 28%
1940: 32%
1944: 32%
1948: 23%
1952: 24%
1956: 39%
1960: 32%
1964: 6%
1968: 15%
1972: 13%
1976: 15%
1980: 12%
1984: 9%
1988: 10%
1992: 11%
1996: 12%
2000: 8%
2004: 12%
2008: 4%
2012: 6%
I don't think John Marshall would have found in favor of Wong Kim Ark either. The Wong decisions was pretty much a case of Republicans against the Democrats, with the Republicans being in the majority, though one Democrat did vote with the majority. He was from Louisiana which had a very different culture from the rest of the country.
“Congress did not pass a measure regarding McCain. They passed a resolution which had no legally binding power.”
And why did they do that? Your statement does not obviate the rest of what I stated.
“None of this constitutes proof. The letters only affirm that the information is in their records. It does not establish whether that this is the ORIGINAL information in the records, or whether it was placed there at a later time.”
It may not constitute proof to you but it did constitute proof to two elected Secretaries of State, to a federal district court judge and to the Justices of the Alabama Supreme Court.
The Letter prepared for the Secretary of state in Arizona specifically verified 12 different specific data points on the birth certificate at the request of the Scretary of State.
The law under which Certified Letters of Verification are authorized states:
“A verification shall be considered for all purposes certification that the vital event did occur and that the facts of the event are as stated by the applicant.”
You don't think the right to be an American citizen is a right which can be infringed? Have you not noticed the massive populations of "anchor babies" which have been created?
They are here illegally, and are therefore taking away from Americans the right to decide whether or not to include them in our national character. The same thing with "birth tourists."
It is as if by sneaking into our house to be born, they could claim our family name.
Yes, the right to be an American Citizen *CAN* and *IS* being infringed, by others who are claiming a right to which they are not entitled.
Then a few years ago, all the stuff from Emerich de Vattel was baloney?
John Marshall was an activist justice. He invented the concept of judicial review in Marbury v Madison which gave his Supreme Court huge new powers and the concept of judicial review of bills passed by the legislative branch is nowhere in the Constitution.
There’s no telling how John Marshall might have ruled after the passage of the citizenship clause of the 14th Amendment. John Marshall was a slaveholder but he had also argued cases for emancipation as an attorney.
There’s been 117 years to reverse the Wong ruling with lots of Supreme Courts composed of lots of different configurations. It still stands “stare decisis.”
.
The Average since 1964 (When Lyndon Johnson cleverly flipped most newly registered black voters to Democrat) is 10%.
Top is 15, bottom is 4. A variation of +/- 5 or 6.
Barack Obama spiked the average down. (because "YAY! MY TEAM!") but when he's gone it will go back closer to 10%.
You take out that first year under Johnson and those last two numbers (Barack) and the average becomes 11.7 with a variation of +/- 3.5 which is D@mn close to my statement of a "few points."
So what's the point? If you are arguing we need to make inroads into the Black community, I agree. I've been arguing since 1994 that we should have picked a black candidate to run against Clinton and so on.
I *KNEW* he would get a massive increase from black voters, (and racist white voters who want to feel good about themselves for voting for someone because of the color of their skin) and I also knew the media would be afraid to hammer him the way they would a white candidate.
It was a guaranteed slam dunk win for conservatism. We could have a historic first, as well as a man who could enact a conservative agenda and we would have ended up routing Liberalism for decades.
All we had to do was run a black candidate and we would have garnered all that support and idolization that the Democrats grabbed by making that choice.
Sure, it's against our principles to judge people by the color of their skin, but in this case it would have served a higher purpose. It would have resulted in a greater good.
Above all else, it would have been a pragmatic solution which would have eventually yielded a principled one.
Sometimes the right man for the Job is one who has the ability to Unify. If skin color is the characteristic that would have rallied the people, we should have recognized this and used it.
But we are the STUPID party.
Anchor babies is another subject entirely and one on which we agree.
Applying the test that you do (for finding Ted Cruz to be a natural Born Citizen of the United States), I don't find Cruz's father's immigration status to be relevant or material.
Just saying, you can dispense with this condition of qualifying for citizenship at birth. The relevant statute assigns citizenship regardless of the "other" parent's immigration status, provided the citizen parent meets the US residency conditions prescribed in the statute.
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