Posted on 02/05/2016 8:22:26 PM PST by kathsua
Those who think Sen. Ted Cruz can be elected to a job he isn’t eligible for are ignoring the 9th Circuit Court of Appeals in San Francisco. If Republicans make the mistake of nominating Cruz for President of the United States, Democrats in California and other states will challenge his eligibility. There’s at least a 90% probability the 9th Circuit Court in San Francisco would rule him ineligible because he is a naturalized citizen rather than a “natural born citizen†as required by the Constitution.
(Excerpt) Read more at my.telegraph.co.uk ...
“The phrase ‘shall be considered as’ operates to create a legal fiction.”
There are at least two serious flaws with your explanation. One, the phrase is used in that act to describe natural born citizens AND naturalized citizens. It is used three times:
The first is applied to those specifically going through the a procedure to become citizens. The law specifically calls this first group naturalized. The second is applied to the children of the first group who are automatically conveyed citizenship without any additional procedure. (This would apply, for example, to a baby of an immigrant who just became a citizen by an oath of allegiance because the baby cannot take the oath.) So is it “legal fiction” when applied to their being naturalized?
The second flaw with your argument is that you are saying that this law, enacted just 18 months after ratifying the Constitution, was unconstitutional. You actually called it “legal fiction”. That is just a polite way to say you think the founders who ratified the Constitution did not know what they were doing when they passed this law, or worse they were in rebellion against the authority of the very document that formed this nation. Makes no sense.
“Cruz was not born in the United States so he cannot be a “natural born citizen†of the United States.”
The idiot author isn’t much on law or legal reasoning, is he?
[[By way of example, NOTHING in the law speaks to “gives up custody to the father.” You are deliberately fogging things up.]]
1409 talks about a child living with a father, and explains what the father’s responsibilities are concerning whether the child needs to be naturalized or not- Where the mother is a Citizen, the father does NOT have to meet the requirements, where them other is NOT a citizen, the father would have to meet the requirements, in order for child to be citizen- where the father has sole custody, he would need to meet the requirements etc 1409 is speaking to unwed parents, if the child is with the father, he needs to meet requirements in order to child to be citizen- this infers that them other is not a citizen nor the one in custody because 1401 covers this case with no need for the father to meet any requirement-
“Shall be considered as natural born citizens is a proviso.” Alexander Porter Morse, Treatise on Citizenship
If the act is merely a definition, that would be the case, would it not?
Rubio was born a natural citizen, just as Cruz was.
Of course, he was not born to a citizen, so their circumstances are slightly different.
You birther folks need to give it up. Nothing will ever come of this nonsense.
Debate on issues and policy differences. Stop wasting time on this idiocy.
Neither of these men were born abroad to non-US citizens. Neither applied and recieved naturalization via the US State department. Both are natural born citizens of the United States of America, just as you and I are. (Assuming you are)
[[”Do have to” what? Is it your contention that a foreign birth certificate, on its own, is evidence of United States NBC?]]
I’m not evading anything- There’s several issues/questions going on in this discussion-
I am tired, and will get back to this question later- 11:00 or so
Yes you are.
Which of these combinations requires "an application," and which do not?
“How can you naturalize a natural born citizen via a Naturalization Act?”
Read them. They define who are citizens at birth just as they specify how a foreigner can be naturalized.
How can Congress regulate immigration with NO SPECIFIC power to do so? Do you think Congress and the President should stop enforcing border laws altogether since there is no constitutional authority for them to regulate this?
Maybe the ability to define who is a citizen and who may enter the country are powers that fall within the “Law of Nations”.
“Well, many of those same founders rescinded that Act and replaced it verbatim minus natural born with the 1795 Act, so there’s some legitimacy to thinking that they indeed recognized and corrected an error.”
No they did not. Both acts can be viewed here:
http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html
Very different. Lots of history as to why changes were made. Oddly not a SINGLE SOLITARY word, letter, speech, newspaper article, EVER mentions the first act having any Constitutional flaws. So odd that ALL of the founders overlooked this. They must have been too distracted with other matters to let this just slip through their fingers.
There are volumes of letters and other documents during this era which give us huge insight into the thinking of the founders. Discussions revolving things like common law from Great Britain reveal a lot about how to interpret the Constitution. Yet, the very founders who ratified the Constitution 18 months earlier thought it was within the purview of Congress to legislate who was a citizen at birth and even who was a natural born citizen.
If the founders did not know better and were in error about their own intentions and their own writing, then I guess I am in good company even if I am wrong.
There is no point discussing all of these convoluted legal theories about natural born citizens unless and until someone can provide a shred of evidence that a single founder had a problem with the Constitutionality of the first naturalization act. If anyone can provide even a single, solitary phrase of dissent, I will reconsider my position.
In your thinking. There are two, distinct rules of citizenship. Dred Scot said that the prevailing rule in 1857 did not include blacks, The 14th Amendment amended that rule to include blacks, free or freedman born in the USA.
Alexander Porter Morse was NOT a founder. His comments a century later still do not carry the weight of the words of a founder even if he was chronologically closer to them than we are.
The fact is the founders who ratified the Constitution clearly thought it was within the purview of Congress to specify who is and is not a natural born citizen in certain cases. This demolishes opposing legal theories. In particular the accusations that those of us who consider Cruz a natural born citizen are traitors and betrayers of the Constitution. I am in good company even if I am wrong. The founders shared my views.
The Legislature was authorized under the Constitution to create “an uniform rule of naturalization.” Uniform, because the States determined who would and would not be their citizens at the time. Natural born citizens do not fall under such a rule. They are not naturalized. Therefore, attempting to revise or extend the meaning of the term natural born citizen to cover children born abroad to citizens was problematic, they had no authority to do so. You cannot naturalize a natural born citizen, it’s a logical impossibility.
Rubio was born a natural citizen, just as Cruz was.
Of course, he was not born to a citizen, so their circumstances are slightly different.
You birther folks need to give it up. Nothing will ever come of this nonsense.
Debate on issues and policy differences. Stop wasting time on this idiocy.
Neither of these men were born abroad to non-US citizens. Neither applied and recieved naturalization via the US State department. Both are natural born citizens of the United States of America, just as you and I are. (Assuming you are)
Well, you offer a convincing argument, and probably have a better understanding of NBC qualification than I do.
However, if both Raphael and the Rube are obviously NBC as you state,...why is there even a question of Cruz being on the ballot?..
Cruz (or his mother) likely applied for a Certification of Birth (FS-545, predecessor to Consular Report of Birth Abroad, FS-240). Those credentials come from the State Department. If he hadn't applied for a US credential, he has nothing in the way of US credential, only his Canadian birth certificate, and that does not make him even a citizen of the US.
If he did put his claim of citizenship before the State Department, for a passport or a Certification of Birth, the claim was subjected to adjudication, a process that involves submission of evidence and concludes with a finding regarding US citizenship.
“Is it your contention that persons born aborad of one citizen parent were and always have been NBC?”
My contention is that the matter is within the purview of Congress and is determined by whatever naturalization laws are in effect at the time.
Children naturally receive the citizenship of their parents at birth. That is what the “natural” part of the phrase means.
This is why Rubio’s citizenship is actually more questionable than Cruz’s. But both were US citizens at birth. Cruz is naturally a US citizen by virtue of his mother’s citizenship. (Citizenship at the founding of the nation was viewed then as being conveyed from the father, just like a last name, or inheriting property. The status of women has changed in the Constitution and in the naturalization laws.)
“If the act is merely a definition, that would be the case, would it not?”
I think you still don’t get it. Hydrogen is an atom with one proton. We could call it a banana if we wanted to, but it would still have the same properties. A “natural born citizen” IS NOT something that exists apart from law. Hydrogen exists whether there are any humans to observe it. Natural born citizens do not.
Citizenship requires the legal construct of a national government. It is an innate power, part of the “Law of Nations”, by which nations can regulate who it allows to become citizens or immigrate into its borders. Government by the consent of the people is the basis for granting power to a federal government. Children are unable to consent. Parents do it for them. Naturally (there is that term again) children are under the control and direction of parents. For those who are not Communists or other Utopians, this is self-evident. When children become adults they have a moral right to renounce their citizenship. Vattel explores this in detail. So, as Vattel says, children naturally (please pay attention to that word he uses) follow the state of their parents when it comes to citizenship.
If a foreigner immigrates into the US and is naturalized, ordinarily any children brought with them are also naturalized (without the need for an oath , etc.).
Natural born citizen has three simple components. Is Cruz a citizen? Yes. Born a citizen? Yes. Is his citizenship natural? Yes. It was conveyed by his mother.
Is Rubio a citizen? Yes. Was he born citizen? Yes. Is his citizenship natural? Questionable. I think the intent and authority of Congress is that citizen at birth is natural born citizen according to the fourteenth amendment. But it is debatable. Vattel would have said he naturally would be a citizen of his parent’s native land and therefore a foreigner. Making a foreigner a citizen is naturalization. So this, if we go by Vattel, would be naturalized at birth.
In my opinion, all citizens at birth, by the current Constitution and the applicable law of naturalization, are natural born citizens.
“attempting to revise or extend the meaning of the term natural born citizen to cover children born abroad to citizens was problematic, they had no authority to do so. You cannot naturalize a natural born citizen, it’s a logical impossibility.”
Or the other possibility is that natural born citizen is not what you think it means. And perhaps the purview of Congress on citizenship and immigration is greater than you think it is. Under what provision does Congress have the authority to regulate immigration? Are you in favor of Congress ceasing to enforce all immigration law because such laws are unconstitutional?
The law that you say is problematic was enacted by the same founders who ratified the Constitution. These were not ignorant and uneducated men. They were also not dishonest or rebellious against the authority of the Constitution. And the act followed ratification by only 18 months.
You should reconsider what the term means. Let’s suppose the founders were in error in the meaning of the term. I believe in original intent. I am supposing you do too. If their intent by those words was something different than we think of them today, shouldn’t we go by their intent rather than applying our definition?
It appears to me that the founders viewed a natural born citizen as someone born a citizen to citizen parents. If both parents are citizens, and the child is born in the US, the child is unquestionably a natural born citizen.
But this is a logic issue. If all A are B, and all B are C, are all C also A? No. Are all A also C? Yes.
If all children born to citizen parents in the US are natural born citizens does that mean that children born to citizen parents outside the US are NOT natural born citizens? Not necessarily.
This is one reason we have a uniform rule of naturalization.
The concept of natural born citizenship MUST include those who fit the basic description. But in cases where the child is born abroad or where one or more parents is NOT a US citizen, then the naturalization laws at the time would apply.
Because Donald J. Trump needed something to divert attention from a discussion of policy or sustenance and instead to “He’s not allowed to play!!!”
And his supporters ran with it.
Do I have that right?
You refer to Vattel quite a bit, as the authority for your propositions. He's an excellent obeserver of law, but I question his exposition as being superior over the constitution, when it comes to interpreting and applying the constitution.
of course not. Why would he and the other liberals pass up a opportunity to keep a conservative out of the White House? The courts wouldn’t accept a challenge to Obama because they wanted him in the White House.
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