Posted on 01/13/2016 8:00:06 AM PST by conservativejoy
IS TED CRUZ A "NATURAL BORN" U.S. CITIZEN?: According to Widener law school's Mary Brigid McManamon, who has an oped in the Washington Post today, the answer is "no." Her reasoning is a bit shaky:
On this subject, the common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are "such as are born within the dominions of the crown of England," while aliens are "such as are born out of it." The key to this division is the assumption of allegiance to one’s country of birth. The Americans who drafted the Constitution adopted this principle for the United States. James Madison, known as the “father of the Constitution," stated, "It is an established maxim that birth is a criterion of allegiance. [And] place is the most certain criterion; it is what applies in the United States." ...
Article I of the Constitution grants Congress the power to naturalize an alien.... But Article II of the Constitution expressly adopts the legal status of the natural-born citizen and requires that a president possess that status. ... Congress simply does not have the power to convert someone born outside the United States into a natural-born citizen.
McManamon's quotation from Blackstone's Commentaries purposefully omits key language. Specifically, Blackstone stated:
Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance [sic] or as is generally called, the allegiance of the king; and alien such as are born out of it.
The key to this passage is the concept of "allegiance"-whether the individual has been born with allegiance to the king, or not. Individuals born with allegiance to the sovereign are "natural-born" subjects; those lacking such allegiance are not. It is not, as McManamon implies from her selective portion, a question merely of being born within the geographic confines of the country. McManamon's citation to the James Madison passage confirms this, as Madison acknowledges that "place is the most certain criterion," but he is not suggesting that it is the only criterion, as he states unequivocally that the "established maxim" is that the ultimate criterion is "allegiance," of which the place of birth is but one (albeit "certain") criterion.
Article I, section eight gives Congress the authority to "establish a uniform rule of Naturalization," and thus identify, by statute, those who must to go through a naturalization process to obtain U.S. citizenship. Those citizens who do not need to go through the naturalization process are "natural born" citizens. As former Solicitors General Neil Katyal and Paul Clement have recently noted in the Harvard Law Review Forum,
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. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States...
The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law and enactments of the First Congress. 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.
McManamon asserts that Katyal and Clement behave in an "unforgivable" fashion by "equat[ing] the common law with statutory law." But they do no such thing. Instead, Katyal and Clement correctly note that the longstanding British legal understanding–as evidenced both by its common and statutory law–was that children born abroad to British subjects were, themselves, "natural born" subjects at birth, without the need for naturalization proceedings. As Randy Barnett succinctly put it,
England had numerous and changing legal rules governing exactly who was and who was not a "natural born subject," which can be used to muddy the waters. But one consistently applied rule is particularly germane: The offspring of the King were natural born subjects of the King regardless of where they were born, whether on English territory or not.
As We the People–both individually and collectively-posses the sovereignty in the U.S., our offspring are the functional equivalent of he King's offspring in England-i.e., 'natural born" citizens of the U.S., regardless of where they are born.
Indeed, by the time of Blackstone's Commentaries (published beginning in 1765), Blackstone himself acknowledged that the law of England had evolved to recognize "that all children, born out of the king's ligeance [sic] whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception."
McManamon also criticizes Katyal and Clement for placing "much weight" on the Naturalization Act of 1790, which stated 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 ..."
Assuming that modern Equal Protection Clause jurisprudence would not permit any constitutional distinction of children based upon fathers versus mothers who are U.S. citizens (Cruz's mother was a U.S. citizen at his birth; his father was not)-and there is no legal reason, today, to think that a mother who is a U.S. citizen owes less "allegiance" to the U.S. than would the father–the law existing at the time of the U.S. founding suggests that, in interpreting Article II's phrase "natural born citizen," children born abroad to U.S. citizens should be considered "natural born."
McManamon dismisses this evidence of the founding generation’s understanding of "natural born" by asserting:
The debates on the matter reveal that the congressmen were aware that such children were not citizens and had to be naturalized; hence, Congress enacted a statute to provide for them. Moreover, that statute did not say the children were natural born, but only that they should "be considered as" such.
This is specious argument. The 1790 Act reveals that the members of Congress–many of whom were heavily involved in the writing and ratification of the Constitution-understood that children of U.S. citizens who were born abroad should be “considered†as "natural born" in the sense that they did not need to undergo any naturalization process and were accordingly legally entitled to be considered U.S. citizens at the time of their birth–the same as an individual born within U.S. borders. The fact that Congress memorialized this common understanding in the 1790 Act does not, in any way, suggest that such children born abroad "had to be naturalized"; quite the contrary.
In short, while Trump and Harvard Law prof Laurence Tribe are correct that the U.S. Supreme Court has not definitively grappled with the full meaning of "natural born citizen," the available evidence suggests that if/when the Court ultimately must grapple with it, the evidence points strongly in Cruz's favor.
As We the People - both individually and collectively - posses the sovereignty in the U.S., our offspring are the functional equivalent of he King's offspring in England-i.e., "natural born" citizens of the U.S., regardless of where they are born.
AFAIC, that settles it.
Wait. You're addressing that to me?
I've always acknowledged both naturalization acts.
What evidence is there that the phrase "natural born citizen" in the Article II presidential eligibility clause was inspired by and drawn from English law?
No, I am not addressing it to you .
In general, if anyone is going to put in the 1790 Act in their analysis - then they also need to put in that James Madison , not just any Founding Father, took it out when he repealed that law. He chaired the committee.
It is incomplete and misleading analysis without it.
January 20, 2009.
The swearing-in of a self-admitted foreign national as President of the United States.
The hard fact remains that if someone with standing brings a law suit to have Senator Cruz declared ineligible for the presidency it will go up to the SCOTUS and the precedent that there is does not look good for his being eligible. Although there is not firm decision on point in the SCOTUS there is a good bit of dicta and there is also evidence of Framers' intent that does not look good for his being found eligible.
The Great Pretender got a free pass and so did the late Edward Kennedy in Hopfmann v. Connolly, but I doubt if Senator Cruz would get such a pass, given the leanings of our judiciary.
What’s interesting is that in the 1790 Act, they codified a definition of a Natural Born Citizen.
And since it would be unconstitutional to change by statute the definition of a Natural Born Citizen, then weren’t they simply reiterating the definition as believed by the Founders?
There is also evidence of the Framers' intent that does look good.
Starting page 8 is a review of the situation by someone who was INS Chief COunsel - not sure if he held the title at that time.
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2068&context=mlr
All one can do is make a reasoned argument and come to a conclusion. That conclusion doesn’t mean it was the reality.
I don’t know the answer. All I want to do is be fair to the analysis with the knowledge that James Madison is the one that took out the definition.
Charles Gordon: “And
the
issue
of
presidential
eligibility
is
not
necessarily
settled,
even
if
we
were
to
accept
the
thesis
that
the
1790
act
was
entirely
a
naturalization
statute.
The
Constitution
does
not
speak
of
naturalized
citizens
but
rather
qualifies
only
“a
natural-born
citizen.”
Barrister, I agree with you.
But, there is absolutely NO ONE willing take this up (see below); the challenge is deemed moot
Again, my understanding is that only the HOR and/or the EC had standing to challenge BHO’s election in 2008. No one did because...
well...
rayciss!
I will, once again, refer you to the “Cletus Interpretation” of natural-born citizen in my previous post.
To wit, both parents must be citizens at the time of birth. If born on foreign soil, at least ONE parent should be in service to the USA (military or government administration).
An opponent in a primary or the general would have standing. So also would an individual authorized under state law to control and decide upon ballot access in that state have standing to allow or deny ballot access.
If they have standing it would proceed at least in regard to standing.
You do understand the legal concept of standing?
From the lay legal, Standing is demonstrated by the person bringing the suit having been harmed and being able to show that harm. The key to “standing”, to which it is unlikely anyone will have such standing is because although they may be able to say they may be harmed in the future, standing is for harm already done. Our civil legal system is designed to redress persons harmed (past tense), not as a preventative for a hypothetical future harm.
The only stop-gap is when Congress certifies the results of the Electoral College, after the election. My understanding is that it requires more than one Representative to object to certification “for cause”.
Once a President is sworn in he is President regardless of how he gets there.
Are you saying that a candidate being opposed by someone ineligible to oppose him or her is not harmed by the illegitimacy of the candidacy?
Not until the election is finished, that is when “harm (loss of election by plaintiff) caused by a defendant empowers standing”.
Then, once past the election, it is doubtful, considering the magnitude of the case (POTUS) that any court would wish to be the one to wreck what has worked more or less smoothly for 230+ years. Courts don’t like to get involved in politics.
Law is not necessarily common logic.
Might as well dive in head first. But Cruz knows the Constitution, loves our Constitution and I must wonder how he manages to define that he is a NBC given he feels Bo-Rock was never won. What does he have in mind with the scenario we see at the moment? There is something that seems to be under the radar awaiting the time to roar out of the deep. Thanks for posting this BTW. Like all Americans we wait w/patience to see what the brew might be. Bitter or delicious.
Read
Yes, I can. I read the article carefully when it first came out. It is very noteworthy in that it cites virtually no authority for the assertions it makes and relies upon little more than unsupported assertions. But, keep in mind that this is the law review that the Great Pretender in the Oval Office was president of and,while he was President of it, failed to write any notes in it, nor pen any forewords or introductions to any issue and did not contribute to any article in it. Have you ever had to write a legal brief?
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