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.
Perhaps you could identify some.
" The standing inquiry focuses on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed, see, e.g., Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180, and a party facing prospective injury has standing where the threatened injury is real, immediate, and direct, see, e.g., Los Angeles v. Lyons, 461 U. S. 95, 102. Davis faced the requisite injury from §319(a) when he filed suit: He had already declared his candidacy and his intent to spend more than $350,000 of personal funds in the general election campaign whose onset was rapidly approaching. Section 319(a) would shortly burden his personal expenditure by allowing his opponent to receive contributions on more favorable terms, and there was no indication that his opponent would forgo that opportunity. Pp. 6-8. - See more at: http://caselaw.findlaw.com/us-supreme-court/554/724.html#sthash.hJvM6HWy.dpuf."
It is also a fact that a number of opinions have indicated that standing can be established under state laws that regulate ballot access if the challenged party is empowered by those laws to contest that access and chooses to do so
Start with my post #47.
I suggest that you research just why, in a subsequent act a few short years later, the word “natural” was removed. I believe you will find if you do that it was taken out because there was a good deal of opinion that it was not constitutional to attempt to alter the Article II phrase in a statute. Nor do I think that you will find authority that what the Framers meant can be defined in a subsequent statute rather than in what can be ascertained about what was meant by the phrase at the time that the Constitution was drafted.
I am an economist. I have been recognized as an expert in my field by U.S. District Court for Western Virginia, and by Circuit Courts in five states, and have adapted my testimony to statutory and case law, and to instructions from the judge.
By that law review citing ‘no authority,” you mean other than Blackstone, Storey, the British Nationality Act of 1730 developing English law on citizenship, the Naturalization Act of 1790 passed by the First Congress of the United States.
I am surprised the authors of that piece did not cite the following Supreme Court case:
https://supreme.justia.com/cases/federal/us/401/815/case.html
In this case the Court authoritatively ruled that there are only two categories of citizenship: (1) natural born and (2) naturalized. While the 14th Amendment grants citizenship by place of birth, the Congress had from the beginning exercised the authority to defined each of natural born and naturalized citizenship, and has been doing so ever since (except that with the 14th Amendment, the Congress has to respect that person born here subject to our laws are natural born citizens).
In particular, the Congress stipulates certain conditions for a person born overseas of American parents to be an natural born citizen. The Congress is concerned with persons born overseas of mixed citizen parents, and the Congress is concerned with persons born overseas in the second and further generations. A case involving the first problem made its way to the Supreme Court and provided an opportunity for the Court to speak at length about natural born citizenship:
“a person born abroad ‘of parents one of whom is an alien, and the other a citizen of the United States’ who has met specified conditions of residence in this country. Section 301(b), however, provides that one who is a citizen at birth under § 301(a)(7) shall lose his citizenship unless, after age 14 and before age 28, he shall come to the United States and be physically present here continuously for at least five years.”
Sounds like Ted Cruz, except that Cruz clearly mets the residency requirements provided by the Congress for persons born overseas of only one U.S. citizen parent. But, the person in the case didn’t met the residency requirements.
In this long and sometimes tedious decision, the Supreme Court discusses at length differences between 14th Amendment-type citizenship (derived from place), and citizenship by lineage of persons born overseas, especially when only one of the two parents is U.S. You and I oppose dual-citizenship, and the Congress might not agree with our being against it, but at least worked in some requirement that the person establish a relationship to the U.S. so that the U.S. part of the dual citizenship is meaningful.
BTW Ted Cruz was also editor of the Harvard Law Review.
We’ll see, but you examples are pretty far fetched.
Some environmental laws are written to enable “pre-damage” standing.
There has already been a suit regarding ballot access, it got tossed. No other states have denied any of the top guys. Most Primary ballots are already set.
Trump’s only chance is to run the tables. Anything less than clear majority when its convention time, he’s toast. His message and style might work on some voters, but on very few delegates in a 2nd or subsequent ballot.
TigerClaws: If Obama is later discovered to have been born out of the United States (say, President Trump exposes this fact), what are the consequences? Do we ax Obama’s presidential pension? Are the laws he signed null and void?
This raises a very interesting possibility. Ted Cruz is a constitutional lawyer and he probably has every understanding that the NBC clause means two citizen parents. Could Cruz’s presidential bid be guided purely by the goal to expose Obama for the Constitutional fraud that we know him to be?? Perhaps this is the mechanism we use to eradicate all the wrongs that Obama has incurred for the past 8 years?
Good stuff. Really good stuff. Thanks for posting, sharing your experience and knowledge. I really appreciate people backing up their point of view with an authority. it isn’t “them” making the contention, just presenting it, maybe adding a snippet of summary or argument.
Under the rule cited, the person that has standing is the same person who has a right to contest the outcome of the election. That would be a candidate. A suit by another other person should be tossed.
Oops, nevermind, I see that is the case you were citing! Mea culpa.
It is an act of Congress, a statute, that allows Ted to claim US Citizenship. The 1934 Naturalization laws allows a US mother to pass US citizenship to her child. Ted was naturalized at birth via the 1934 law and other later statutes. A naturalized citizen is not a natural born citizen. A natural born citizen requires no laws to make him a citizen. A natural born citizen is of the soil and of the blood. Born on soil to two citizen parents.
Trump mother did not retain UK citizenship. Her oath of citizenship required her to renounce her UK citizenship.
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.
Rogers seems definitive on the issue of a person born overseas having one U.S. citizen parent.
Some people argue what the law or even the Constitution should say. Others argue what the law or the Constitution should be interpreted as saying. But, legally, the Supreme Court has been very clear.
I have no beef with politicians who use the matter for political advantage. We’re not playing tiddlywinks. But Lawrence Tribe should be held to a different standard.
The key phrase is “outcome of the election”.
Some countries take the U.S. oath as revoking their citizenship. Not the U.K. The U.K., like the U.S., is cool with dual citizenship.
In the U.S., naturalization in another country does not end U.S. citizenship. Period.
In the U.K., the issue is discretionary. But, if the U.K. Secretary of State revokes U.K. citizenship, you can appeal. The U.K. Secretary of State did not revoke the citizenship of Donald Trump’s mother. Hence, she was a dual citizen. By lineage, so are her children. Donald Trump is a dual-citizen of the U.S. and the U.K. (this has been dormant and, so, isn’t an issue). Furthermore, because the Donald has established a meaningful tie with the U.K. via his major investment in Scotland, he has invigorated his (long dormant) U.K. citizenship, and his children could claim to be dual citizens. (The transfer of citizenship of persons born overseas only goes one generation. If your foreign-born parent doesn’t establish a relation with the home country, citizenship by lineage ends with him.) The only non-dual citizen person in the Trump household is Melania, because Slovenia is very restrictive about dual-citizenship. Donald Trump has major properties in Panama, Brazil, Turkey and the United Arab Emirates, in addition to Scotland. He is a very international person, with friends, business partners and investments all over the country and all over the world, including Hispanics and Muslims. I frankly think this is all very positive.
“People with dual nationality who are British nationals can be deprived of their British citizenship if the Secretary of State is satisfied that ‘deprivation is conducive to the public good’; there is a right of appeal.”
Cruz's qualifications can be challeneged in either election, by any opponent who is allowed to challenge the outcome of the (state) election contest.
I'd like to know what label you think they attach, to Bellei. Is he natrual born, or naturalized?
I find it as obvious as the face on my nose that Bellei is considered naturalized.
What part "I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen;" do you not get?
The US is not cool with dual citizenship, the US Courts starting in the 60's will not allow US laws against it to be enforced. In Trumps' mom day dual citizenship was illegal. Once again liberal courts are the problem. And who gives a flip what the UK thinks? Trumps' mother renounced her UK citizenship and I will bet dollars to donuts that she traveled on a US passport not a UK passport after taking her oath of citizenship.
Thank you, Lord Chancellor. I am sorry for quoting the U.K. law on the matter when clearly written U.K. law means nothing compared to your opinion.
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