Posted on 01/09/2016 7:58:16 PM PST by Joachim
Commentary on the Commentary
[o]n the Meaning of “Natural Born Citizen”
or
“Do these people know that we plebes have a thing called ‘the internet’?”
Commentary by Neal Katyal & Paul Clement (text in black)
(Web link: http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/)
Commentary on the Commentary by Farmer John (interspersed text in red)
(Footnotes in the original commentary are brought into text with numbers retained for reference)
We have both had the privilege of heading the Office of the Solicitor General during different administrations. [This is an appeal to authority, not evidence—“trust us, we’re the experts.”] We may have different ideas about the ideal candidate in the next presidential election, but we agree [authors Neal Katyal, (Obama administration acting Solicitor General (May 2010-June 2011), Al Gore's co-counsel in Bush v. Gore of 2000, (Yale Law)), and Paul Clement (G. W. Bush administration Solicitor General (July 11, 2004 – June 19, 2008), (Harvard Law)) are suggesting that this article represents bipartisan consensus, since they are from “opposing” political parties, and therefore this article is above the fray of partisan advocacy—but both authors are members of the “establishment” or “government” party and therefore stand naturally in opposition to the unwashed masses, and in favor of a Harvard Law alum, and as easily seen by reading the primary sources, this article is not neutral or objective, but is essentially pure advocacy] on one important principle: voters should be able to choose from all constitutionally eligible candidates [the authors are framing their argument as a voter freedom or voter rights issue—but what about the rights of U.S. citizens to live in a constitutional republic?], free from spurious arguments [Legal Writing 101: do not use pejorative terms like “spurious”, because they only highlight the weakness of your position— if the opposing arguments are “spurious”, why do we need two former solicitors general (acting or actual) to unite across the nominal party divide to address them?] that a U.S. citizen at birth is somehow not constitutionally eligible to serve as President simply because he was delivered at a hospital abroad. [Straw man / deflection—the real question is whether someone who is a U.S. citizen solely due to an act of Congress (at birth or at any other time) is eligible to serve as President. If the answer is yes, then among other consequences, Congress has the power to determine eligibility for the Executive under the “natural born citizen” requirement, effectively amending the Constitution by statute.]
The Constitution directly addresses the minimum qualifications necessary to serve as President. In addition to requiring thirty-five years of age and fourteen years of residency, the Constitution limits the presidency to “a natural born Citizen.” (1) (U.S. Const. art. II, § 1, cl. 5.) All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. [This is false—a mere conclusory assertion which is disproved by simply reading the primary sources cited in this article itself. For example, in 1 William Blackstone, Commentaries *354–63, cited below by the authors, Blackstone states: “Natural-born subjects are such as are born within the dominions of the crown of England . . . and aliens [are] such as are born out of it.”] And Congress has made equally clear from the time of the framing of the Constitution [false, the earliest evidence based on congress’ conduct is from 1790, three years after ratification] to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. parent citizen [false—the Naturalization Act of 1790 specifies children of “U.S. citizens” not of “a U.S. citizen”] generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States. (2) (See, e.g., 8 U.S.C. § 1401(g) (2012); Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 303, 66 Stat. 163, 236–37; Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797.) [Irrelevant—the fact that someone may become a “citizen” as provided by act of Congress generally without regard to birthplace does not bear on whether one can become a “natural born” citizen without regard to birthplace. (See Blackstone, quoted above, on this point.) The enumerated powers clause of the Constitution grants Congress power to make a uniform rule of naturalization. Nowhere is Congress granted the power to define “natural born.” If Congress had this power, Congress could unilaterally amend the constitutional requirements for the chief executive, effectively completely eliminating the “natural born” requirement by redefinition, if desired. This is structurally untenable in the context of separation of powers. Based on the powers granted and not granted to Congress, U.S. citizens who are such by act of Congress are necessarily “naturalized” citizens only, unless they are also “natural born” on some other basis.]
While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory [implying that this issue is easy, and that no one with any knowledge or intelligence would disagree (an implied ad-hominem)], here, the relevant materials clearly indicate [Legal Writing 101: the word “clearly” should be avoided because it is a red flag indicating that the opposite is true—if the point is so clear, the authors would just show it, not state it] that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings. [False—the primary sources cited in this article show no such thing, and actually show that persons in Cruz’ position are not “natural born” citizens.] The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law (3) (See Smith v. Alabama, 124 U.S. 465, 478 (1888)) and enactments of the First Congress (4) (See Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888)). [True—or at least the cases cited support the respective propositions asserted. But note that the British source is British common law (not British statutory law) and note that its use is in interpreting the Constitution, not as a direct source of U.S. law.] Both confirm that the original meaning of the phrase “natural born Citizen” includes persons born abroad who are citizens from birth based on the citizenship of a parent. [False, as seen by simply reading the primary sources.]
As to the British practice, laws in force in the 1700s [what happened to the discussion of British common law?—the authors are jumping straight to British statutory law, which is not one of the two “useful sources” listed above—why?—because British common law does not support their argument, so they ignore it] recognized [this term “recognized” is false in this context—British laws in force in the 1700s, naturalized, by act of Parliament, children born outside Britain and thus made them, by statute, subjects of the Crown—these British laws did not “recognize” them as such (as if this had been the pre-existing British common law)] 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).) [False in the phrase “used ‘natural born’ to encompass such children”—a weasel-lawyer phrase if ever there was one. The casual reader might be surprised to notice that the British laws at issue do not “use the term to encompass such children” in the expected sense of actually applying the term “natural born” to such children. These laws do not describe such children as “natural born,” or state that they were/are natural born independent of the effects of the respective Act itself (because they in fact were/are not). Instead, these laws provide that such children “shall be deemed, adjudged, and taken to be natural-born subjects of this kingdom, to all intents, constructions, and purposes whatsoever” 7 Ann., c. 5, § 3 (1708) or “shall and may, by virtue of the said recited Clause in the said Act of the seventh Year of the Reign of her said late Majesty, and of this present Act, be adjudged and taken to be, and all such Children are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever” British Nationality Act, 1730, 4 Geo. 2, c. 21. (See https://archive.org/stream/statutesatlarge00britgoog#page/n506/mode/2up and http://www.uniset.ca/naty/BNA1730.htm for online versions of the primary sources.] (The cited case itself does not support the conclusion for which it is cited, but appears to give a fair reading of the history and interpretation of the British laws.)] 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.) [False in the use of the word “were”, as noted in the preceding comment.] 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. [True, but misleading in light of the foregoing parts of the article. The Framers would also have been familiar with the fact that under British common law natural born citizens (subjects) were those born within the territory of the King (unless they owed him no allegiance, as in the case of children of foreign ambassadors or of foreign invaders), and that Parliament had thus found it necessary or advisable in certain cases to create statutory law in order to provide the benefits of natural born status to foreign born children of British subjects.] 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. [True, but also misleading in light of the foregoing parts of the article. For example, the cited reference in Blackstone states (as quoted above) that “Natural-born subjects are such as are born within the dominions of the crown of England . . . and aliens [are] such as are born out of it. . . . [And further] “an alien is one who is born out of the king's dominions . . . . The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once.”]
No doubt informed by this longstanding tradition [what longstanding tradition??—two British acts of Parliament, separated by 22 years (in 1708 and 1730)??—is that the “longstanding tradition”??—where is expected the discussion of British common law??], just three years after the drafting of the Constitution, the First Congress established [false in the use of the term “established”—Congress did not “establish”, but rather “provided,” by law, under the power to establish a uniform rule of naturalization] that children born abroad to U.S. citizens were U.S. citizens at birth [so what?], and explicitly recognized that such children were “natural born Citizens.” [False in the statement that Congress “explicitly recognized that such children were ‘natural born Citizens’.” Congress rather, by statute, under the enumerated power to make a uniform rule of naturalization, provided by law that such children “shall be considered as natural born.” If these children were in fact “natural born” prior to the law being passed, the law would have been unnecessary. If the law was merely intended to restate the existing state of the law, the law would at least have said “are” natural born, or “are acknowledged as” rather than “shall be considered as.” In fact, Congress, by providing that such children “shall be considered as” natural born (in law), implicitly recognized that such children were not natural born (in fact), directly contrary to the authors’ claim of explicit recognition of “natural born” status.] The Naturalization Act of 1790 (8) (Ch. 3, 1 Stat. 103 (repealed 1795)) provided that “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 . . . .” (9) (Id. at 104 (emphasis omitted)). The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress. [True but misleading in light of the foregoing and the following.] That is particularly true in this instance, as eight of the eleven members of the committee that proposed the natural born eligibility requirement to the Convention served in the First Congress and none objected to a definition of “natural born Citizen” that included persons born abroad to citizen parents. (10) (See Christina S. Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 Gonz. L. Rev. 349, 371 (2000/01).) [True, but totally beside the point and straw man / deflection: the statute does not define “natural born”, merely provides that certain children will be treated (in law) as natural born, though they are not (in fact). There is no definition in the statute to object to!!]
The proviso in the Naturalization Act of 1790 underscores that while the concept of “natural born Citizen” has remained constant and plainly [another Legal Writing 101 no-no—“plainly” is a red flag for something that is not “plainly” so] includes someone who is a citizen from birth by descent without the need to undergo naturalization proceedings [false—as seen from the comments above, the 1790 act does not define “natural born”, further, “natural born” under common law traditions does not include someone who is a citizen from birth by descent—see, e.g., United States v. Wong Kim Ark, 169 U.S. 649, 671 (1898) ("‘The acquisition . . . of nationality by descent is foreign to the principles of the common law, and is based wholly upon statutory enactments.’" (citing Dicey Conflict of Laws, 17, 741))], the details of which individuals born abroad to a citizen parent qualify as citizens from birth have changed. [Again, having citizenship, from birth or later, as provided by statute, is not the issue and is beside the point—if these various and time-varying laws, passed under the naturalization power of Congress, change the meaning of “natural born”, then they effectively amend the Constitution, a result which makes no sense.] The pre-Revolution British statutes sometimes focused on paternity such that only children of citizen fathers were granted citizenship at birth. (11) (See, e.g., British Nationality Act, 1730, 4 Geo. 2, c. 21.) The Naturalization Act of 1790 expanded the class of citizens at birth [the authors seem to imply that the 1790 Act was expanding on the British statute, but this is not the case as the British statute had no effect in the US, and was not being amended or replaced by the Act of 1790] to include children born abroad of citizen mothers [this is a stretched and unsupported interpretation not at all clear from the 1790 Act text—mothers are not mentioned in the text, and the text says the provision applies to “the children of citizens of the United States” (emphasis added) which may well require both parents to be citizens (at a time when legal citizenship of a woman generally followed that of her husband, so that blended citizenship marriages generally did not exist)—see http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html for an online copy of the text of the Acts of 1790 and 1795] as long as the father had at least been resident in the United States at some point. But Congress eliminated that differential treatment of citizen mothers and fathers before any of the potential candidates in the current presidential election were born. [True as far as it goes, but straw man / beside the point. Congress has naturalization power only, not “natural born” power.] Thus, in the relevant time period, and subject to certain residency requirements, children born abroad of a citizen parent were citizens from the moment of birth [irrelevant—so what?], and thus are “natural born Citizens [false].”
The original meaning of “natural born Citizen” also comports with what we know of the Framers’ purpose in including this language in the Constitution. [False, in the context of the original meaning asserted in this article.] The phrase first appeared in the draft Constitution shortly after George Washington received a letter from John Jay, the future first Chief Justice of the United States, suggesting:
[W]hether 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 [sic] army shall not be given to, nor devolve on, any but a natural born Citizen. (12) (Letter from John Jay to George Washington (July 25, 1787), in 3 The Records of the Federal Convention of 1787, at 61 (Max Farrand ed., 1911).)
As recounted by Justice Joseph Story in his famous Commentaries on the Constitution, the purpose of the natural born Citizen clause was thus to “cut[] off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interpose[] a barrier against those corrupt interferences of foreign governments in executive elections.” (13) (3 Joseph Story, Commentaries on the Constitution of the United States § 1473, at 333 (1833).) The Framers did not fear such machinations from those who were U.S. citizens from birth just because of the happenstance of a foreign birthplace. [Mindreading the Framers—where is the evidence?] Indeed, John Jay’s own children were born abroad while he served on diplomatic assignments, and it would be absurd to conclude that Jay proposed to exclude his own children, as foreigners of dubious loyalty, from presidential eligibility. (14) (See Michael Nelson, Constitutional Qualifications for President, 17 Presidential Stud. Q. 383, 396 (1987).) [(Is this the evidence?) Straw man / diversion and totally misleading in light of the primary sources—Jay’s proposal would not have had the effect of excluding his children, as Jay no doubt knew (and as the authors no doubt know). See, e.g., 1 William Blackstone, Commentaries *354–63 (“[T]he children of the king's embassadors born abroad were always held [under common law] to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador.”)]
While the field of candidates for the next presidential election is still taking shape, at least one potential candidate, Senator Ted Cruz, was born in a Canadian hospital to a U.S. citizen mother. (15) (See Monica Langley, Ted Cruz, Invoking Reagan, Angers GOP Colleagues But Wins Fans Elsewhere, Wall St. J. (Apr. 18, 2014, 11:36 PM), http://www.wsj.com/articles/SB10001424052702303873604579494001552603692.) Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth [apparently true] and is thus a “natural born Citizen” [false] within the meaning of the Constitution. Indeed, because his father had also been resident in the United States, Senator Cruz would have been a “natural born Citizen” [false, as the 1790 Act did not (and could not) create any natural born citizens] even under the Naturalization Act of 1790 [and possibly doubly false, in that, as noted above, the 1790 act applied to “the children of citizens of the United States” (emphasis added), arguably not to children of a singular citizen (at a time when citizenship of a wife was often determined by that of her husband), so Cruz may not even have been a citizen under that Act, let alone “natural born”—again, see http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html for an online copy of the text of the Acts of 1790 and 1795]. Similarly, in 2008, one of the two major party candidates for President, Senator John McCain, was born outside the United States on a U.S. military base in the Panama Canal Zone to a U.S. citizen parent. (16) (See Michael Dobbs, John McCain’s Birthplace, Wash. Post: Fact Checker (May 20, 2008, 6:00 AM), http://voices.washingtonpost.com/fact‑checker/2008/05/john_mccains_birthplace.html [http://perma.cc/5DKV-C7VE].) [Straw man / diversion—(1) McCain was born to two U.S. citizen parents, unlike Cruz (2) the base and the Canal zone might arguably have been “dominions of the US” sufficient to confer “natural born status” (unlike Cruz’ Canada) and (3) service in the military of the father (or parent) might have been enough to confer “natural born” status, as in the case of an “embassador” under British common law (unlike Cruz’ father).] Despite a few spurious suggestions to the contrary, there is no serious question [really?] that Senator McCain was fully eligible to serve as President, wholly apart from any murky debate about the precise sovereign status of the Panama Canal Zone at the time of Senator McCain’s birth. (17) (See, e.g., Laurence H. Tribe & Theodore B. Olson, Opinion Letter, Presidents and Citizenship, 2 J.L. 509 (2012).) Indeed, this aspect of Senator McCain’s candidacy was a source of bipartisan accord. [OK then—bipartisanship!—that settles it!] The U.S. Senate unanimously agreed that Senator McCain was eligible for the presidency, resolving that any interpretation of the natural born citizenship clause as limited to those born within the United States was “inconsistent with the purpose and intent of the ‘natural born Citizen’ clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term ‘natural born Citizen.’” (18) (S. Res. 511, 110th Cong. (2008).) [So now the Senate alone has power to amend/define the Constitutional requirements of the Executive? And why would the Senate ever (except perhaps to honor some abstract principle) exclude one of its own members from the power of the Presidential office?] And for the same reasons, both Senator Barry Goldwater [different issue, as Arizona was at least a U.S. territory and thus he was born within the dominion of the US—Canada is not within the dominion of the US] and Governor George Romney [not natural born because born in Mexico, but at least both parents were citizens] were eligible to serve as President although neither was born within a state. [Straw man/ diversion/ beside the point for the reasons noted.] [Just because “we the people” may have slept through elections before does not mean we should or will do so now.] Senator Goldwater was born in Arizona before its statehood and was the Republican Party’s presidential nominee in 1964 (19) (See Bart Barnes, Barry Goldwater, GOP Hero, Dies, Wash. Post, May 30, 1998, http://www.washingtonpost.com/wp-srv/politics/daily/may98/goldwater30.htm [http://perma.cc/K2MG-3PZL]), and Governor Romney was born in Mexico to U.S. citizen parents and unsuccessfully pursued the Republican nomination for President in 1968 (20) (See David E. Rosenbaum, George Romney Dies at 88; A Leading G.O.P. Figure, N.Y. Times, July 27, 1995, http://www.nytimes.com/1995/07/27/obituaries/george-romney-dies-at-88-a-leading-gop-figure.html).
There are plenty of serious issues to debate in the upcoming presidential election cycle. [But Constitutional requirements for the office of President are not serious?] The less time spent dealing with specious [OK, the authors are really failing Legal Writing 101 now] objections to candidate eligibility, the better. Fortunately, the Constitution is refreshingly clear [still more Legal Writing 101 fail!] on these eligibility issues. To serve, an individual must be at least thirty-five years old and a “natural born Citizen.” Thirty-four and a half is not enough and, for better or worse [implying that the natural born requirement is bad, so we should not take it too seriously] , a naturalized citizen cannot serve. But as Congress has recognized [provided, by law,] since [almost] the Founding, a person born abroad to a U.S. citizen parents [and, later, to a U.S. citizen parent (singular),] is generally a U.S. citizen from birth [and treated by law as if “natural born”] with no need for [any other form of] naturalization. [True, as fixed.] And the phrase “natural born Citizen” in the Constitution encompasses all such citizens from birth. [False.] 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. [Pants on fire much?— Farmer John]
That’s a really important point.
Did Cruz undergo a naturalization ceremony in order to become a citizen? No. Therefore he is a natural born citizen.
Your logic tree indicates that each and every anchor baby born in Laredo is qualified to assume the office of the President or Vice President. Correct?
(In reality, true, they are born “citizens,”( Do not require Naturalization) But not “Natural Born” because their parents are not US citizens).
What part of Naturalization do you not understand? The very fact that a person requires naturalization attest to the fact that that individual is not natural born. The two terms are not equal. In any case, a statute cannot change a constitutional requirement. Only the amendment process may perform such changes.
The natural born Citizen clause in Article II can not be changed by a Naturalization Act.
Yes. That’s my main point.
If his status was determined by statute, it wasn’t determined by nature.
Good point.
I finally found the retention requirements that governed Cruz’s situation because of the 1952 Immigration and Naturalization Act.
Basically, under the statute, someone like Cruz, having been born abroad to an alien parent and a citizen parent, would lose his citizenship unless he later, as a young adult, fulfilled certain U.S. residency requirements.
DITTO!
Yeah, I know - but for the life of me I am unable to understand why so many FReepers and others do not see the logic of that argument. It just baffles me.
The sad thing in all of this is that I like senator Cruz, even while he is not my candidate of first choice. BUT, I desire that we uphold our Constitution over all else, because, failing that duty, nothing else will matter.
Indeed.
You don’t even want to get me started on the other ways that the most important aspects of the oath to support and defend the Constitution are being completely ignored.
Actually, they are not legal citizens; because, in being the children of illegal aliens, the are not “subject to the jurisdiction of the United States” - which is what the 14th Amendment requires. Just as American Indians (non-taxpaying) living on Indian Reservations are considered sovereign citizens of THEIR tribe or “nation” ...
So too it cannot be legitimately stated that those children born on U.S. soil to illegal squatters / trespassers - who themselves are in fact neither citizens nor subject to the jurisdiction of the United States - are yet under the jurisdiction of the U.S.
Since Ted Cruz did not renounce his Canadian citizenship until 2014 - long after he assumed his position of an elected United States senator, is he in fact a Senator? If he was still a Canadian citizen at the time of his candidacy and election, was he not ineligible for the office?
Well, he sure would have been qualified to run for Prime Minister of Canada until 2014.
I finally found the retention requirements that governed Cruz’s situation because of the 1952 Immigration and Naturalization Act.
Very interesting, and thank you..
If Ted Cruz was a natural born citizen, he would have been a citizen regardless of what our immigration and naturalization statutes require.
He would have been a natural born citizen no matter when in American history he had been born.
Which quite obviously isn’t the case.
This really is a disaster if in fact he took office illegitimately. IIRC there is a requirement that you be a citizen of the United States to hold the Office of U.S. Senator. Is this correct? If so, then how is it that a man who claims himself a constitutional scholar could make such an error? Not trying to be a smart@$$ but I really do not fathom WTH is going on here!
From your lips to God’s ears. And let’s include Ms Nancy ‘Botox’ Pelosi who signed the paperwork that the creature was eligible.
Actually, they are not legal citizens; because, in being the children of illegal aliens, the are not “subject to the jurisdiction of the United States†- which is what the 14th Amendment requires
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