Posted on 05/08/2013 8:03:24 AM PDT by SeekAndFind
In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born in 1936 in the Panama Canal Zone to parents who were American citizens, was a “natural born Citizen” ratified my point, as virtually all commentators purported to undertake an originalist inquiry.
I hadn’t seen any reason to comment on the left-wing “birther” attacks on Senator Ted Cruz’s eligibility to be president. Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.
As this Congressional Research Service report sums it up (p. 25; see also pp. 16-21), the “overwhelming evidence of historical intent, general understandings [in 18th-century America], and common law principles underlying American jurisprudence thus indicate[s] that the most reasonable interpretation of ‘natural born’ citizens would include those who are considered U.S. citizens ‘at birth’ or ‘by birth,’ … under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent.” In other words, there is strong originalist material to support the semantic signal that “natural born Citizen” identifies someone who is a citizen by virtue of the circumstances of his birth—as distinguished from someone who is naturalized later in life as a citizen. (In McCain’s case, the dispute turned on whether he was indeed an American citizen by virtue of his birth—or was instead naturalized a citizen under a law enacted when he was eleven months old. For more, see law professor Gabriel Chin’s lengthy article making the case against McCain.)
To my surprise, the New Republic’s Noam Scheiber tries to argue that Cruz’s embrace of constitutional originalism somehow means that Cruz can’t determine that he is a “natural born Citizen.” But the only evidence that Scheiber offers for this position is the assertion (which Scheiber mischaracterizes as a concession) by a non-originalist law professor in an MSNBC interview that the proposition that a person is a “natural born Citizen” if he is a citizen by virtue of his birth “isn’t really clear cut if you limit yourself to the actual wording of the Constitution” (that’s Scheiber’s paraphrase) but instead depends on “how our understandings have evolved over time.” Scheiber both overlooks the powerful originalist evidence in support of Cruz’s status as a “natural born Citizen” and misunderstands how originalist methodology operates. (In public-meaning originalism, you don’t “limit yourself to the actual wording of the Constitution,” and you don’t find yourself lost simply because the Constitution “never defines what ‘natural born’ means.” You instead look to the public meaning of the term at the time it was adopted.)
My point here isn’t to contend that the originalist evidence points entirely in one direction. As law professor Michael Ramsey observes in a post that I’ve run across while finalizing this post (a post that also takes issue with Scheiber), there are originalist scholars who don’t “find the argument entirely conclusive.” But Scheiber’s piece is a cheap whack at Cruz as well as a cheap whack at originalism.
“The court found that he was as much a citizen as a natural born citizen, but not that he was natural born citizen. / Since the ruling was related to whether Wong was a citizen not whether he was eligible to President, you’re throwing dicta at me because....”
Because it was not dicta. The government argued in the case that WKA was not a NBC, and so the court answered that argument with a detailed discussion of the meaning of NBC. It was brought up, argued on both sides, and the court made it a part of their decision.
Dicta is not “anything in a decision other than the final judgment statement”. Dicta is anything made in passing, not critical to the logical line of thought supporting the actual decision. That is why LexisNexis lists 39 holdings in WKA...and unusually high number, but I saw a summary of cases a few months back that described the WKA ruling as “Gray reviews the history of the world”.
Dicta is what Minor gave in discussing NBC - something not argued, and irrelevant to the final decision. Dicta - “in passing”.
And here is Jeff doing his thing. Quoting a portion of something while leaving out the part that utterly changes the meaning.
"... And 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:
Apparently the 1790 Congress was very resistant to the idea of tolerating a non-resident (foreign) father.
Once again, Jeff is lying by omission.
Jeff apparently doesn't understand the word "Unanimous." Not surprising, given the demonstrations by him that he doesn't understand the word "natural" either.
Obviously Justice Gray was worried about the cost in ink from adding the words "Natural born" to his decision. It would have simply put him over budget, and we couldn't have that.
Nobody reads your wall of text.
No, the government argued that WKA was not a U.S. citizen.
Why do you feel the need to lie about that, Mr. Rogers?
Okay, thanks for providing the broader quote. The source where I looked it up only had the part that I quoted. Otherwise I would've included the rest.
And yes, in the case of children born outside of the United States, Congress did specify that the father had to have been resident in the United States at some point in his life, in order for his child to be a natural born citizen.
This measure was designed to prevent entire generations of American citizens from being born in foreign countries. Because without that provision, Jack Smith could have moved to France, and every one of Jack's French-born descendants from then on would have been a US citizen, even though neither they nor their fathers had ever lived here.
Now, note the main point:
The First Congress, and our first President, which included 40% of the Signers of the Constitution, clearly and specifically provided that children born abroad to US citizens were natural born citizens. They did so knowing full well that if someone was a natural born citizen, that conferred Presidential eligibility. And they made no comment whatsoever specifying otherwise.
So it is both obvious and undeniable that they intended for the children born abroad to US citizens to be eligible to the Presidency, as long as they were born to a father who had at some point in his life actually lived in the United States.
They thus specified, with absolute clarity, that it DID NOT require "birth on US soil, plus two citizen parents," for a person to be a natural born citizen, or to be eligible to the Presidency of the United States.
Now we can talk about other things, and we have. And your claims have been shown to be absolute BS again and again and again, literally at every turn. But we really need go no further than this.
Once again, the Framers of the Constitution say that you're completely full of you know what.
If you don't think an administration can have policies which are wrong and unconstitutional, I refer you to the current administration.
And if you don't think a court can have rulings which are wrong and unconstitutional, I refer you to the current court, (Obamacare) and many previous courts. (Roe, Wickard, Plessy, etc.)
Oh, and by the way... Plessy v. Ferguson and Wong Kim Ark were THE SAME COURT!
Now *YOU* need to defend their ruling in Plessy v. Ferguson with the same degree of "the court can do no wrong" stupidity with which you have been defending the Wong Kim Ark decision. I will further point out that Plessy v. Ferguson is a 7-1 decision, while your Wong Kim Ark is only a 6-2, which in Jeff-"the court is GOD"-speak means that the Plessy decision has more legal validity than does the Wong decision!
Come on loudmouth. Tell us how the court you worship is so unerringly correct that you are willing to vouch for their correctness in the case of Plessy v Ferguson! Let Jeff explain to us how this court could not have made a mistake, and how anyone who thinks the court may be mistaken is an idiot or something.
This ought to be good.
Yeah, I can't wait to see if you are deaf to the truth of Plessy v Ferguson being the same court as Wong.
Tell us about the court being right again. Do Tell!
Which says the same thing I've said previously now on many occasions: That children of illegal aliens are outside the spirit of the historical rule.
I've said many times now that I think Congress could pass a law denying citizenship to the children born here of illegal alien parents.
That article does not once attempt to make the claim that children born here of non-citizen legal immigrant parents are anything other than natural born citizens.
So yes, UNANIMOUS.
You know all this already, of course, because we've gone over it before.
You just don't want to miss an occasion to lie in order to try and further your stupid birther claim.
I don't know why you do it. It doesn't get you anywhere, because I just call you on it, and once again you look like an absolute idiot.
But hey, it's your choice.
“We get invalid arguments, twisting of the Constitution, twisting of the law, twisting of historical quotes.”
We, the so-called “birthers”, get the same thing from you.
Even an admission that a court could ever be wrong about anything is a serious blow to their arguments. Or mighten they argue that Plessy was correctly decided? Somehow I doubt they would do that.
Oh well. You live by the "infallible court" you die by the "infallible court."
I absolutely read his comments, and so do a lot of other people. Because they are factual, well considered, and accurate.
Completely unlike the masses of fallacies and Constitution-twisting BS that you post.
And anyone can verify that's the case, in both instances. All they have to do is run down the sources, and analyze the issues logically, and they will see that his posts are accurate, and yours are complete BS.
I highly recommend doing so to all who read this thread.
You have got to be kidding me. The naturalization act of 1790 has been beaten to death for the last umpteen years, and you are telling me you didn't know about it or how to find the full text? This statement doesn't pass the smell test.
And yes, in the case of children born outside of the United States, Congress did specify that the father had to have been resident in the United States at some point in his life, in order for his child to be a natural born citizen.
"shall be considered as " does not mean "BE"
Ignoring the rest of your post.
Now *YOU* need to defend their ruling in Plessy v. Ferguson with the same degree of "the court can do no wrong" stupidity with which you have been defending the Wong Kim Ark decision.
No, I don't. I never said the Court could do no wrong. I have simply said that in this particular case, based on all of the legal and historical evidence, they got it right.
You want to move the goal post. "Ah, you have to, Plessy v. Ferguson, blah, blah, blah."
I'm sorry, but we're not talking about Plessy v. Ferguson. We're talking about the fact that your stupid birther claim is complete bullcrap.
As shown by post 167, by the entire weight of what every real early authority had to say on the matter, and by what the US Supreme Court had to say in US v Wong Kim Ark.
That article does not once attempt to make the claim that children born here of non-citizen legal immigrant parents are anything other than natural born citizens.
But the "Jeff theory" of "natural born citizen" is that ANYBODY born here is automatically a citizen, because the only requirement is to be "BORN HERE." You know, Jus Soli, by right of the soil and all that. I don't see the soil objecting to the immigration status of illegals, and pretty much all the people you keep citing believe that children born to illegals ARE citizens.
It has always been MY position that neither the law or the 14th amendment was ever intended to grant citizenship to illegal immigrants. There is no need to pass a law to address them because they were never permitted by law.
Apart from that, Barack Obama Sr. was in the country illegally. He lied on his Visa application about supporting or associating with Communists, and he Lied about his association with Polygamy and his moral character. Had he told the truth, his Visa would have been rejected.
I stand corrected. Nobody worth a sh*t reads his wall of text. Or yours for that matter.
Completely unlike the masses of fallacies and Constitution-twisting BS that you post.
Yeah, tell me where the Principles of American Independence are to be found in English legal theory? Might we have to look elsewhere for them, say, Switzerland?
Imagine that.
Okay, then. They clearly specified that such persons SHOULD BE CONSIDERED AS eligible to the Presidency.
In practical legal effect, there's no difference.
Whether you say "are" or "shall be considered as," it's clear that they meant for such persons to be eligible to be elected President. So your entire idiotic claim is slapped down, stone cold, by 40% of those who signed the Constitution.
Jeff - you posted in bold quotes: “...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”.
This is a great example of your attempt to project your beliefs, your strategy and your tactics on me (us). This, in all it’s bold detail, displays your side’s “...invalid argument, twisting of the Constitution, twisting of the law, twisting of historical quotes.” - that of which you accuse me (us).
You post the quote above in bold which comes from the Naturalization Act of 1790. All the while, you KNOW (or should know) that the NA of 1790 was superseded by the Naturalization Act of 1795 - which DID NOT include the term “natural born”.
Heck, you can even find this nugget on that “grossly conservative” website, Wikipedia.[wiping sarcasm off my fingers]
“The Naturalization Act of 1790 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”. (Act to establish a uniform Rule of Naturalization, 1st Congress, 2nd session, March 26, 1790, 1 Stat.L. 103 at 104, 2 Laws of the U.S., ed. Bioren & Duane (1815) 82 at 83.) This act was superseded by the Naturalization Act of 1795, which did not mention the phrase natural born citizen.”
Congress corrected themselves. Your turn.
It is very relevant. It is the holding.
The way the court works is they hear the case, then in that same week of oral arguments the justices vote.
After the vote, the most senior justice in the majority assigns the task of writing the majority opinion.
The most senior justice on the losing side decides who will write the main opinion for the dissenting viewpoint.
Justices draft opinions.
Justices' draft opinions are circulated among each other.
The justices then exchange comments, criticisms, and corrections by memos.
Justices may change their position, redraft their opinion, etc. The majority may become the minority and vice-verse.
They may vote again and continue their discussion by memorandum.
This process continues. Once all reviews are complete and the majority and dissent established, a final proof is made and authorized for printing.
Wong Kim Ark was ruled a "citizen" not a "natural born citizen".
Wongs parents were permanently domiciled, not transient aliens. Obama's father was a transient alien.
You claim WKA is on point when it is not, you claim WKA was held to be a natural born citizen when he was not. You are bootstrapping.
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