Would the Founders Have Cared Where Ted Cruz Was Born?

From beginning to end, the debate over Senator Ted Cruz and his birth certificate has been silly. Like the "birtherism" debate surrounding Barack Obama, it shows that many Americans think our Constitution is a Harry Potter book of spells ("Mandamus! Habeas Corpus! Nullus indviduus mandatus!"). The "natural born" citizen clause in particular appeals to the mythological imagination.

The clause is found in Article II § 1 cl. 5, which contains three and only three requirements for a potential president: He or she must be 35 years old, must have lived in the U.S. for 14 years, and must be "a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution."

What was the reason behind this third requirement? Many people are convinced that the "purpose" of the Clause was to bar Alexander Hamilton (born in Nevis in the Caribbean) from the presidency. But the provision above says in so many words that anyone who is a citizen "at the time of the adoption of this Constitution" can be president. Hamilton had become a citizen of New York by act of the legislature in 1782. He didn't become president largely on account of the whole being-shot-to-death-by-Burr thing.

In fact, in 1787, no one over 11 -- not George Washington, not John Adams, not Thomas Jefferson -- was a "natural born citizen" of something called "the United States of America." The first "natural born citizen" to enter the White House, by my count, was Martin Van Buren in 1836 -- who was born in 1782, five years before Philadelphia.

I don't think that the Framers were even thinking about potential presidents born to American parents abroad. Their concern was naturalized citizens, and it was a lot more immediate and urgent.

Ref post 70: the Venus case involved INTERNATIONAL LAW.

“The great question involved in this and many other of the prize cases which have been argued is whether the property of these claimants who were settled in Great Britain and engaged in the commerce of that country, shipped before they had a knowledge of the war but which was captured after the declaration of war by an American cruiser ought to be condemned as lawful prize. It is contended by the captors that as these claimants had gained a domicile in Great Britain, and continued to enjoy it up to the time when war was declared, and when these captures were made, they must be considered as British subjects, in reference to this property, and consequently that it may legally be seized as prize of war in like manner as if it had belonged to real British subjects. But if not so, it is then insisted that these claimants having, after their naturalization in the United States, returned to Great Britain, the country of their birth, and there resettled themselves, they became reintegrated British subjects and ought to be considered by this Court in the same light as if they had never emigrated.”

http://supreme.justia.com/cases/federal/us/12/253/case.html

In reviewing different claims of citizenship placed by multiple countries, and which country should be given precedence during a time of war, Vattel was used - because Vattel was an authority on INTERNATIONAL LAW.

US law determines citizenship within the USA. International law resolved conflicting claims when two countries are in dispute. Could the owners of the Venus be considered subjects of Britain under international law?

The US Constitution extends to our borders. British law extends to the borders of the UK. US law cannot compel someone in Britain to be treated as a citizen of the US, and British law cannot compel someone in the US to be treated as British. That was, after all, part of the cause of the War of 1812, whose aftermath was being examined in the 1814 case of The Venus.

Vattel was used - because Vattel was an authority on INTERNATIONAL LAW. US law determines citizenship within the USA.

According to the man who wrote the first Constitutional legal treatise [which got him an appointment to the Virginia District Court by James Madison] Vattel was used for internal operation as well. Here he connects Vattel directly to the 10th Amendment:

And because this principle was supposed not to have been expressed with sufficient precision, and certainty, an amendatory article was proposed, adopted, and ratified; whereby it is expressly declared, that, "the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." This article is, indeed, nothing more than an express recognition of the law of nations; for Vattel informs us, "that several sovereign, and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may in certain respects put some constraint on the exercise of it, in virtue of voluntary engagements."[57]
George Tucker, View of the Constitution of the United States with Selected Writings [1803]

“This article is, indeed, nothing more than an express recognition of the law of nations...”

Law of Nations = International Law. In your case, referencing what happens if “sovereign, and independent states” - state being another word for country - decide to join together in a “perpetual confederacy”.

I wish the states of the US were sufficiently sovereign so that “the deliberations in common will offer no violence to the sovereignty of each member”! Unhappily, the Civil War and the 14th Amendment destroyed that concept.

Still, your quote was using Vattel as an authority on International Law, which he was. He was NOT an expert on American law (which didn’t exist in 1757), nor was he very knowledgeable on English law.

Still, your quote was using Vattel as an authority on International Law,

The 10th Amendment is not 'international law'.

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He was NOT an expert on American law (which didn’t exist in 1757),

I never asserted Vattel was 'an expert on American law'.

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nor was he very knowledgeable on English law.

I never made the claim that he was.

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Your assertion that Vattel's concepts had no valid internal operation is false. Tucker WAS an expert on American and English law and HE stated the 10th Amendment was a DIRECT ASSERTION of Vattel.

Trying to infer I made claims that I never did is merely an attempt to deflect from the documented FACT Vattel was used in American internal law.

That Heritage report is a good find.

I expect there are more of them. Over the years i've seen quite a few reports addressing the issue of "natural born citizen" and many of them support our position. Some do not, but those generally inherit Wong Kim Ark as their basis.

I have long held that Wong Kim Ark might not be wrong if interpreted narrowly. (Wong Kim Ark is a 14th amendment citizen.) The problem is, people insist on interpreting it broadly. (Anyone born here is a "natural" citizen.)

One thing of which we can be certain is this. If a report descends through Wong Kim Ark, it's generally wrong, or at least incomplete.

Aside from the English common law is not federal law argument, Blackstone says the same thing.

1 Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance, of the king; Chapter X , William Blackstone, Commentaries on the Laws of England

Natural born subjects are born on the soil of England AND within the Allegiance of the King

How can you be born 'within' an Allegiance?

Because your parents are already there.

I have pointed out before that not even ENGLISH law goes so far as they want American Law to go. What's more, the ENGLISH quit using the Jus Soli rule back in the late 19th century, if I remember correctly.

Yes, they interpret Blackstone in the most liberal manner possible, and completely ignore the fact that the English Executive branch is solely governed by just sanguinus. (Right by Blood.)

I will also point out that Other writers on English law made the distinction between "natural born subjects" and Denizens much clearer than did Blackstone. Have you seen this?

See that part where it says "for it is not cælum nor solum that make a subject, but being born within the Allegiance, and under the protection of the King."

Those words "cælum nor solum" mean Sky and Soil. It means that the place where you are born is not the critical factor for determining allegiance, it is the spiritual bond which your parents hold to the King that obligates someone to the same allegiance.

The English, in general, did not trust the children of Non-English parents in positions of authority.

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Though they wish us to follow the ENGLISH rule for citizenship, the English were never so foolish about it as are we.

I have long held that Wong Kim Ark might not be wrong if interpreted narrowly.

IMHO, any interpretation of it is 'Wong'......period.

The fallacy of Wong Kim Ark was that the court allowed itself to skip over the requirement of denizen-ship, the place between an alien resident and naturalized citizen.

To become a denizen, an alien resident had to renounce their allegiance to their home country and take an Oath they intended to become naturalized citizens. This is what started the 'residency clock' to meet the requirement for Naturalization.

Now, WE may operate under Western law, but his parents were from China and, according to their law, had no ability to renounce the hold their Emperor had over them. This means Wong Kim Ark was born a subject of the Emperor of China, as the ONLY way he could have been a natural born citizen was if his father was already considered a denizen.

Between alien friends, who are temporary subjects, and subjects naturalized or natural born, a species of subjects intermediate is known to the law of England. They are distinguished by the appellation of denizens. The power of denization is a high and incommunicable portionu of the prerogative royal. A denizen is received into the nation, like a person who is dropt from the clouds. He may acquire rights, but he cannot inherit them, not even from his own parent: he may transmit rights to his children, who are born after his letters patent of denization; but not to those who were born before.
James Wilson , Collected Works, vol. 2

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The court skipped over a Constituional rule that had been established for one hundred years....ENTIRELY, and designated Wong Kim Ark the country's first 'anchor baby'.

Oh, I think discussions of birthright citizenship and its relationship to the 44th President of the United States and a possible 45th President of the United States have everything to do with natural born citizenship.

Undoubtedly. But that is not what you alleged. You have alleged that Statutory law has some influence on the meaning of "natural born citizen". It has none. The law cannot define a class which exited prior to the creation of the law. Statutory law may make naturalized citizens, but it cannot make natural citizens.

You wish to conflate statutory citizenship with natural citizenship and this is an error of logic. (And a deliberate one I think.)

No, I hadn't seen that, thanks! Thanks for translating too. I speak fluent Texan, but Latin...not so much. LOL!

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What's more, the ENGLISH quit using the Jus Soli rule back in the late 19th century, if I remember correctly.

Honestly, you can go all the way beack to Lord Coke. Even HE said in Calvin’s Case
3. the time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom, that was born under the ligeance of a king of another kingdom, albeit afterwards one kingdom descend to the king of the other.

so the concept of Sovereignty can't supplant Sovereignty seems to have held true for 400 years.

No, the more I read, the more I'm convinced the whole 'jus soli' business in more a figment of contemporary law.

PapaNew said: "Right, but I think it's whether his parents are U.S. citizens not his parents place of birth."

While I agree with this, I think the Founders' concern would go further. Even if both parents are born U.S. citizens, if they both choose to reside in a foreign country, especially Great Britain, and give birth to a child and raise the child in Great Britain, with the child maturing and residing in Great Britain past the age of 35, then I don't think the Founders would consider such a person fit to be President.

Benedict Arnold and his wife Peggy Shippen were both born in what became the U.S. I don't know if there was ever any formal proceeding which stripped Arnold of his citizenship. Loyalists weren't welcome after the Revolution but I'm not familiar with any process which stripped them of citizenship.

If Arnold and his wife gave birth to a child in Great Britain, would that child be a U.S. citizen? Would our Founders have considered that person eligible to be President?

Ref post 70: the Venus case involved INTERNATIONAL LAW.

Which is exactly the body of law encompassing citizenship. I'm not going to spend much time on you. You will have to make do with the response I gave Jeff.

Justice Bushrod Washington:

"The claims of Maitland, McGregor and Jones are resisted in toto upon an objection to the national character of the claimants."

...

"There being no dispute as to the facts upon which the domicile of these claimants is asserted, the questions of law alone remain to be considered. They are two -- first, by what means and to what extent a national character may be impressed upon a person different from that which permanent allegiance gives him, and secondly, what are the legal consequences to which this acquired character may expose him in the event of a war taking place between the country of his residence and that of his birth or in which he had been naturalized?

"The Venus" was explicitly about citizenship; Who possessed it and what was the nature of it.

I look at it differently. I regard the court as having decided him to be a citizen by the action of the 14th amendment. I regard the court as distinguishing this sort of citizenship from "natural born citizenship". I believe there are two distinct points of evidence that they distinguished 14th amendment citizenship from natural born citizenship.

Firstly, their ruling in Plessy v Ferguson undeniably divides people into different classes of citizenship with Homer Plessy being regarded by the court as a second class citizen.

Secondly, Had it been their intention to regard Wong Kim Ark as the exact same class of citizenship as a "natural born citizen" they would have explicitly stated so in their ruling. They did not.

Ergo, it is quite plausible to regard the court as having Acknowledged Wong Kim Ark is a citizen through the action of the 14th amendment, but is NOT a "natural born citizen" for the purpose of Presidential eligibility.

This interpretation is thoroughly consistent with the Court's Previous actions and their Wong Kim Ark ruling. The court even states in the ruling that Wong Kim Ark is a citizen by virtue of the 14th amendment.

A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, ...

It doesn't get plainer than that.

I would add further that we already know from Minor v Happersett that the Waite court regarded 14th amendment citizenship as distinctly different from Natural citizenship.

“””US law cannot compel someone in Britain to be treated as a citizen of the US”””

Indeed, it can and DOES.

Current example: The IRS is currently targeting “accidental Americans” who live abroad for taxes and penalties: “The IRS is making a worldwide push to squeeze money from Americans living abroad and from anyone who holds dual citizenship, whether they know it or not. It doesn’t matter if the “duals” want US status, have never set foot on US soil, or never conducted business with an American.”

More detail, here (http://mises.org/daily/5666), but you get the gist.

The U.S. CAN in fact compel someone in Britain or anywhere else in the world to be treated as a U.S. citizen even if they are completely unaware that they are one.

Likewise, the same is true of other countries’ ability to do the same to their citizens located in the U.S.

I would add further that we already know from Minor v Happersett that the Waite court regarded 14th amendment citizenship as distinctly different from Natural citizenship.

Of course it is. 14th Amendment citizenship is an extra-constituional one. It's a product of positive, man-made law, not natural Law, because the freed slave had no 'natural' citizenship.

Nor could the 14th be one of permanent operation. In order for it to BE so, multiple Constitutional clauses and Amendments would first have to be repealed, such as the 10th Amendment, the 10 miles square clause, the 'republican' form of government clause as well as all the State Constitutions, because the Law cannot contradict itself.

IMHO, the 14th Amendment was a one-time Naturalization clause. Since Nature abhhores a vacuum, it allowed US citizenship to fill the void caused by the freed slaves change in legal status.

And just as the Founders repealed the 1790 Naturalization Act and replaced it with the 1795 Naturalization Act, a search in the Library of Congress:
http://memory.loc.gov/ammem/hlawquery.html

for the phrase 'disabilities imposed by the fourteenth amendment' reveals return such as:

A Bill To relieve citizens of the United States from all disabilities imposed by the fourteenth amendment of the Constitution of the United States.

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In addition, Madison stated in the Federalist there was no 'national' government. This is reaffirmed by Tucker, as he states any act to create national legislation that affects the individual People was an admission of an Act of treason:

As the sovereign power hath no limits to its authority, so hath the government of a state no rights, but such as are purely derivative, and limited; the union of the SOVEREIGNTY of a state with the GOVERNMENT, constitutes a state of USURPATION and absolute TYRANNY, over the PEOPLE.

[snip]

In the United States of America the people have retained the sovereignty in their own hands: they have in each state distributed the government, or administrative authority of the state, into two distinct branches, internal, and external; the former of these, they have confided, with some few exceptions, to the state government; the latter to the federal government.

Since the union of the sovereignty with the government, constitutes a state of absolute power, or tyranny, over the people, every attempt to effect such an union is treason against the sovereignty, in the actors; and every extension of the administrative authority beyond its just constitutional limits, is absolutely an act of usurpation in the government, of that sovereignty, which the people have reserved to themselves.
George Tucker, Note B, On the Several Forms of Government.

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Okay, sorry if this turned into a wall-of-text post. I didn't intend for it too.

But a sincere "Thank You!" for letting me get it all off my chest anyway!

:-)

I plead guilty to holding the position that statutory law has EVERYTHING to do with Article 2, Section 1 Natural Born Citizenship. It is my position that a Title 8 USC Section 1401 “Citizen of the United States at Birth” and an Article 2, Section 1 “Natural Born Citizen” are identical.
The courts over the last 115 years have backed my position.

The federal government’s attorneys in U.S. v. Wong Kim Ark asked the Supreme Court in 1898 to answer the question: “Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth?” If so, then verily there has been a most degenerative departure from the patriotic ideals of our forefathers; and surely in that case American citizenship is not worth having.”

The majority on the Supreme Court responded by saying:[An alien parent’s] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, [7 Coke, 6a,] ’strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’”

“Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, ’subjects,’ for we are equally bound by allegiance and subjection to the government and law of the land.’”
“…every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.”

“The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.”

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