Posted on 01/16/2016 12:34:18 AM PST by RC one
The Founding Fathers’ insistence that the presidency be limited to “natural born citizens†was based on their openly expressed fear that “foreigners were disloyal,†as law professor Malinda L. Seymore has written.
As Article II, Section 2 of the Constitution declared: “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 ….†(Italics added) A loophole for themselves, as Supreme Court Justice Joseph Story wrote 46 years later, was created “out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country. A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities.â€
(Excerpt) Read more at washingtonpost.com ...
That’s not going to work.
Actually it’s not even the argument. Speaking English means nothing in this case. What means something is intent and if natural born status can be transferred from mother to son.
The opposition will try to tell you that Cruz is a natural born Canadian and a naturalized American.
That thinking is solely based on place of birth.
I contend as do many others that blood places a role as well, or both.
The deterrent security effect of the natural born language was meant to act as a firewall against foreign interferences in the US government.
The opposition will tell you that split allegiance is the problem.
I will argue that allegiance to a foreign power is the problem and dual allegiance is a ridiculous assertion and means nothing. How can ones allegiance be bifurcated by tracing the origins of the parent.
Secondly, prior to the founding, the populace, (America having not been created yet) had allegiances to Britain, France and the Colonies. How then would any fledgling government impose a constitutional law that exposes this by place of birth.
This same issue developed where this term (natural born)originated in Europe. We see that in the argument and discussions from old Europe as well. Again there are two sides, one arguing place and the other blood and place.
I believe this is why both place of birth and blood are used to determine natural born.
I think I am done with this,,,,,past done in fact.
That is arguable, and still is.
The current understanding runs contrary to yours.
The current understanding isn’t codified.
OK.....fine...Judge Coldheat will codify it.
My decision is as follows.
The intent of the Natural Born language being national security, in that a foreign power may be inclined to exploit our new country, I see no sign of ill intent between a natural born American mother and a Cuban refugee father.
I therefore rule that natural born American status transferred from Mother to son at birth, no matter where the birth occurred.
Thus, Ted Cruz, the defendant in these proceeding, is a natural born American.
Here are the cites....http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/
Stare decisis is the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true. See, e.g. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833. Stare decisis is Latin for “to stand by things decided.†The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. A court engages in vertical stare decisis when it applies precedent from a higher court. Consequently, stare decisis discourages litigating established precedents, and thus, reduces spending.
According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.†In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt. A benefit of this rigidity is that a court need not continuously reevaluate the legal underpinnings of past decisions and accepted doctrines. Moreover, proponents argue that the predictability afforded by the doctrine helps clarify constitutional rights for the public. Other commentators point out that courts and society only realize these benefits when decisions are published and made available. Thus, some scholars assert that stare decisis is harder to justify in cases involving secret opinions.
Despite the legal stability afforded by stare decisis, it is not without negative externalities. Critics argue that the doctrine occasionally permits erroneous decisions to continue influencing the law and encumbers the legal system’s ability to quickly adapt to change.
Although courts seldom overrule precedent, Justice Rehnquist explained that stare decisis is not an “inexorable command.†On occasion, the Court will decide not to apply the doctrine if a prior decision is deemed unworkable. In addition, significant societal changes may also prompt the Court to overrule precedent; however, any decision to overrule precedent is exercised cautiously.
the Supreme Court's opinion in United States v. Wong Kim Ark:
It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.
Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.
The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle.
Persons who are born in a country are generally deemed citizens and subjects of that country." Supreme Court Justice Joseph Story, Conflict of Laws, § 48.
There is no Stare Decisis relevance to Wong and Cruz..
I could just as easily say that your argument is BS...
But I’m not going there.....yet
Wong was born in the US to Chinese nationals who had since returned to China.
The case was about whether the Chinese exclusion act applied.
There is no relevance here to Cruz for some extraneous dicta that frankly support both sides of this argument.
The case was about whether the Chinese exclusion act applied.
The case was a simple citizenship argument and of the application a California law against a Citizen.
Both of Wong parents were Chinese and on top of that neither made any attempt to naturalize in the US so their allegiances were to China and remained so.
Cruz's mother is, was, continues to be a American, and a natural born. There is no argument there.
When a American travels, for any reason other that government related as a US citizen, do they somehow leave all that at the border?
Of course not.
So, did his Mothers allegiances change while she was in Canada?
NO, She did not apply for citizenship. So the intent was always to return. Was it not?
Would we be having this argument i8f she had remained in the US and Ted's father had come to her in the US...?
NO! We would not be..
So In my mind, this part of the argument is finished..She had her natural born status intact at the time Ted was born.
So we are no left with one single issue. Can the status of natural born be transmitted from parent to new born regardless of the location situation they mat find themselves in at time of birth, assuming the natural born status is still intact by being a subject or citizen even though far away from home.
Wong has nothing at all to do with this and thus is not a stare decisis issue.
But it defines citizenship and, on multiple accounts, defines and explains natural born citizenship which is what this is all about. We can all agree that Cruz was a dual citizen. the question remains however, was he a natural born citizen. The opinions expressed in Wong are pretty clear that he isn’t. People wish to think that a NBC is someone who is simply “a citizen at birth” but that is not the opinion that has been expressed in Wong.
That's true. Process will only take you so far.
In the end, it's the sovereign who must prevent any usurpation.
And of course in the United States, We the People are sovereign, under the Sovereign God.
The election of Obama demonstrates a very dangerous degradation of the moral character, wisdom, and understanding of that sovereign.
Don't let it confuse the issue here.
The underlying argument is simple and simply answered.
We stipulate to the fact that Cruz's mother was a natural born American and had no allegiance to Canada or any other country. By "happenstance", (a important word here) she bore a male child in a Canadian hospital.
The natural born citizen clause, having been determined in the past and present to have 2 paths where one path (place) is of premium value, and the other of blood is one that is invoked only due to "happenstance".
In this case, there being no facts in evidence to the contrary, as in divided allegiances, Mother Cruz's status can and did transfer to the child at birth, because that was the intent. That intent as facts reveal was proved after returning to the US 4 years later, and that no effort was made to naturalize in Canada.
So in this particular case, not all but this one, the Blood gift of natural born status is valid.
It's all about intent and facts, and when they agree, the determination has to be yes! He is a natural born.
There is no stare decisis case to use here as no two of the past cases are the same or even similar.
Having said this, I do not believe this case will ever see the light of a SCOTUS court room because it is far too pat and simple as well as 100% political in that there is no claim that a US statute or current law was violated. Thus damage and mitigation would be difficult and likely kicked over to Congress.
This is a matter of opinion and stems from a political argument. It is what it is....and I wish trump have left it alone for the rats to try. As a result of his brashness, this issue will cause the fracture to remain in the party, long after the primary is over and will affect the general.
As to the British practice, laws in force in the 1700s recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used “natural born†to encompass such children. 5. See United States v. Wong Kim Ark, 169 U.S. 649, 655–72 (1898). These statutes provided that children born abroad to subjects of the British Empire were “natural-born Subjects . . . to all Intents, Constructions, and Purposes whatsoever.†6. 7 Ann., c. 5, § 3 (1708); see also British Nationality Act, 1730, 4 Geo. 2, c. 21. The Framers, of course, would have been intimately familiar with these statutes and the way they used terms like “natural born,†since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone’s Commentaries, 7. See 1 William Blackstone, Commentaries *354–63. a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.
We can keep this up forever, as I said Wong is not a comparable case, and what we are actually doing is arguing not the case, but the dicta or opinion that stemmed from it, and both sides can use it and do.
So if we continue this circular argument, (my prediction is that you will post a founder quote where British law is figuratively pissed on)we will end up back at the start.
Exactly. Statutory citizenship is not Natural Born Citizenship. statutory/naturalized citizenship may be revoked (Rogers v. Bellei ) Natural Born Citizenship may not. Ted Cruz's citizenship could have been revoked had he not complied with the statutes governing his dual citizenship. A natural Born Citizen's citizenship can not be revoked.
We stipulate to the fact that Cruz's mother was a natural born American and had no allegiance to Canada or any other country.
You may stipulate that all you like but that does not make it a fact as she most definitely was in allegiance with Canada as was her child who was born into the same allegiance.
Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign.
By "happenstance", (a important word here) she bore a male child in a Canadian hospital.
She moved to Canada, married a Canadian citizen, and gave birth to a child in Canada. Nothing was happenstance about her circumstances. She was not a soldier deployed overseas for example. She made a choice-several in fact.
Actually he was a applicant at the time. He would later get his naturalized citizenship in Canada, and later again, naturalized in the US. This actually has no bearing on the Mother. Unless of course you wish to argue that men have the legal standing and women or mothers do not.
For the hell of it,.,,,,lets do a analogous exercise.
I was born in the Northwest, to a Southern mother and a yankee dad.
Since birth, I have lived more than 2/3s of my life in the South, and went to college in the south, marrying a southern gal. I am still in the south.
Question:
Am I a natural born Yankee or a natural born Southerner?
I will take no offense to the answer.
There is actually two schools of thought on this...in the same way as your opinion of natural born.
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