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.
Sounds right to me and contrary to what some assert it sounds like what was taught in school sixty years ago, at least to the best of my memory. I still say that one can be a citizen at birth but NOT a natural born citizen but what does it all matter. In the end it will turn on who has the mojo without regard to what the truth is.
Trump says he isn’t saying Cruz is ineligible, he says somebody else will say so. But, somebody else has said so. Cruz’ eligibility has been challenged in at least two states with respect to his name being placed on the primary ballot. And, the challenges have been summarily dismissed. Perhaps somebody will appeal to U.S. District Court. Good luck with that.
Some people are playing games with this, because it’s to their political advantage. I appreciate this. There’s a certain theatre to all this, and Trump is demonstrating real mastery of the process. I don’t think he’s doing this cynically, thinking his supporters are too stupid to know any better. He’s doing it because it works. And, it works on at least two levels. Not only does this appeal to a significant percentage of the people, enough to be the clear leader in a fractured primary field, but also to dominate the media.
I’ll add another level of “it working.” It produces the correct constitutional outcome.
Exactly! Cruz eligibility has been challenged at least twice and competent magistrates have summarily dismissed the challenges. The issue is cut and dry.
Let me ask you a question, to see if there is any point to further discussion: Do you think Barack Obama is a natural born citizen?
That question stands separate and different from Cruz. I don't want to add noise to the debate.
We can part friends, there is no point in further discussion.
This is settled law. Like McCain and Romney Sr, Cruz was a citizen at the moment of his birth by the citizenship of his mother.
If this becomes an election deciding issue, either in the General or Primary, we will all have TRump to thank for electing Hillary.
Ross Perot ensured Clinton's election in 1992. Without Bill's election, there would be no Hillary in 2016.
TRump: Another rich Republican whose ego is more important to him than our country!
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