Would the Founders Have Cared Where Ted Cruz Was Born?

The Atlantic ^ | Garrett Epps

[Nero Germanicus]

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.

[Mr Rogers]

BTW - this “obot” has been posting on FR since 1998. After a 15 year track record, calling me an Obot just makes you look stupid.

[Rides3]

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?”

Sorry, NO.

Two quotes from the U.S. v. Wong Kim Ark ruling:

"The question presented by the record is whether 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"

And...

"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent 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."

The question of record asked of and answered by the Supreme Court in 1898 was whether whether 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

Parents having an established permanent domicile in the U.S. at the time of one's birth in the U.S. is a requisite condition of 14th Amendment birthright citizenship.

[Rides3]

“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.”

Where did that assumption come from? We know for a fact that such an assertion isn't true. Just two examples off the top of my hat...

1) The Civil Rights Act of 1866:

"all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States"

2) The U.S. Secretaries of State determinations that Hausding and Greisser (both born in the U.S. to alien fathers) were not even U.S. citizens at all.
Source: http://books.google.com/books?id=wdgxAAAAIAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

[Nero Germanicus]

What can I tell you? U.S. v. Wong Kim Ark has been settled case law for the last 115 years and it was used as precedent to rule on the constitutional eligibility of Obama.

One more time: Tisdale v Obama, US District Court Judge John A. Gibney, Jr.: “It is well settled that those born within the United States are natural born citizens.”— Tisdale v Obama, US District Court of the Eastern District of Virginia, January 23, 2012.
http://www.scribd.com/doc/82011399/Tisdale-v-Obama-EDVA-3-12-cv-00036-Doc-2-ORDER-23-Jan-2012

Neither U.S. v. Wong Kim Ark nor Tisdale v. Obama were appealed so the decisions stand.
Additionally:
Ankeny v Daniels, Indiana A three judge panel of the Indiana Court of Appeals ruled unanimously: “Based on the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the United States are ‘natural born citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.”—Indiana Court of Appeals, November 12, 2009
http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf

[nosf40]

Anyone can Google “Justia Minor vs Happersett” and find out the facts about “leading legal website” (as our Obot-in-chief calls them) intentionally editing SCOTUS cases by removing references to Minor.

Yet you continue to deny facts. Read Donofrio’s analysis of Justiagate.

[Nero Germanicus]

Yes, anyone residing in America who doesn’t have diplomatic immunity is subject to American law. That’s why we can deport illegal aliens, because they have broken OUR laws.

[Rides3]

U.S. v. Wong Kim Ark has been settled case law for the last 115 years and it was used as precedent to rule on the constitutional eligibility of Obama.

Settled case law? It has provably false info in it.

Tisdale v Obama, US District Court Judge John A. Gibney, Jr.: “It is well settled that those born within the United States are natural born citizens.”

Well settled? How is that possible when "the question of record" answered by the Supreme Court in U.S. v. Wong Kim Ark specifically named parents' established permanent domicile in the U.S. at the time of their child's birth in the U.S. as a requisite factor in order for said child to acquire 14th Amendment birthright citizenship?

[Rides3]

Yes, anyone residing in America who doesn’t have diplomatic immunity is subject to American law.

Such persons can still be subject to a foreign power. Likewise, the same is true of U.S. citizens residing abroad. They're subject to U.S. tax law even though they're residing in a foreign country.

[Mr Rogers]

They did not deliberately delete anything. Nor would there have been any need to, since Minor has no bearing on the subject - a fact the Minor court knew, and all subsequent courts have known.

When I normally quote Minor, I use a different website - because there are several that publish them, and the first one I bookmarked was here:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZS.html

However, when I do legal research for my classes, or when a lawyer prepares for a case, I don’t use public websites. I use NexisLexis via the school, while the majority of folks working in law use Westlaw.

As best as I could tell from your birther fantasy conspiracy websites, they claim justia.com deleted, not Minor, but references to Minor in other cases, none of which involved the meaning of NBC. I’m sorry you and your friends think there is some great conspiracy, but Minor has been available all along on all the websites. It has been correctly maintained on Justia. And I can easily access it via NexisLexis, and I’m sure Westlaw also has it.

Like most other birther fantasies, there is no meat in your hamburger patty. There isn’t a competent lawyer anywhere in the country, and no district attorney, and no court in the country that thinks Minor has any relevance to Obama, McCain or Ted Cruz. The inability of birthers to read simple sentences and paragraphs - let alone pages and entire opinions - is what keeps birthers spinning their wheels, slinging mud everywhere and achieving nothing of value.

[DiogenesLamp]

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 Courts over the last 115 years have interpreted the decision made 115 years ago in this manner, but that does not mean the courts have interpreted it correctly for the last 115 years. The Gray court held that Wong's citizenship is by the operation of the 14th amendment. We know from Minor that the 14th amendment doesn't control natural citizenship. Ergo, interpreting Wong such that it does is incorrect.

Once again, it is no great leap to regard a court which DEFINED second class citizenship (Plessy v Ferguson) as having a double standard because it has demonstrated that Double Standards are perfectly consistent with it's thinking.

The Court decided Homer Plessy was a second class citizen, and very likely they decided the same of Wong. That they deliberately omitted the words "natural born" in their ruling implies their meaning far more clearly than does subsequent court's interpretations which attempts to expand it.

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?”

And the Court's failure to elaborate on the point, and indeed deliberate omission of the controlling language ("natural born") that would allow such an interpretation, can only be regarded as answering the question in the negative.

Especially after the way they treated Homer Plessy.

A Court that holds the doctrine of "Separate but Equal" cannot be regarded as holding equality to be their primary guiding principle. That they would regard Wong as having the same status as Homer is perfectly consistent with their prior behavior.

[Rides3]

when I do legal research for my classes

Do you teach? Or are you a student? And what are you teaching and/or studying?

I'm asking because if you're in academia, it's quite odd that you asserted that "US law cannot compel someone in Britain to be treated as a citizen of the US" when such can quite clearly be proven false, as I've easily done.

[PapaNew]

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?

But on the other hand, say Abigail Adams spent time with John in France and had John Quincy there, don't you think John Quincy would be considered a natural born citizen eligible for presidency?

Looks like the argument could go either way and could come down to evidence of the intentions of the parents. For example, the legal status of the parents and the child might depend on whether they intended to permanently reside abroad, which might favor no natural birth citizenship, or were only there as long as official business deemed necessary (like Adams) or on a temporary trip for pleasure which might favor natural birth citizenship.

[Rides3]

Looks like the argument could go either way and could come down to evidence of the intentions of the parents. For example, the legal status of the parents and the child might depend on whether they intended to permanently reside abroad, which might favor no natural birth citizenship, or were only there as long as official business deemed necessary (like Adams) or on a temporary trip for pleasure which might favor natural birth citizenship.

Actually, U.S. v. Wong Kim Ark sets a precedent for such consideration, as the ruling specifically names Wong Kim Ark's parents' established permanent domicile in the U.S. at the time of his birth as a factor in establishing his 14th Amendment birthright citizenship.

The ruling specifically states:

"The question presented by the record is whether 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"

[Mr Rogers]

No, you have not easily done it, nor done it at all. US law does not control the UK, nor the UK law control the US. When there is a disagreement, it falls under international law. International law uses the laws of the disputed countries as a starting point to use in resolving the conflict.

UK law can nor require someone born in the US with a UK subject parent (Obama) to serve in their military, nor can it prevent him from running for office. US law controls that. It just doesn’t work that way. If Mexico declared all US citizens to also be Mexicans, it could not compel us to all serve in its military or pay taxes to Mexico.

I’m taking paralegal classes. There are no classes in US citizenship, although I took a class in immigration law recently. However, its focus was on what is required to get a green card or to become a citizen. Those who were born citizens were not part of the subject matter.

[Mr Rogers]

You could also go back to the 1800s, when the question arose concerning a child born in the US to British tourists, and who spent all but the first few months of her life in Britain:

“Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not...

...Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.”

Lynch v Clarke 1844

[Rides3]

No, you have not easily done it, nor done it at all. US law does not control the UK, nor the UK law control the US.

The issue wasn't control over countries. It was, in your own words: "US law cannot compel someone in Britain to be treated as a citizen of the US"

I quite correctly responded that 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, by citing the example of U.S. tax law liabilities coming as a surprise to those who've lived abroad for decades or never even set foot in the U.S.

The same is also quite true of other countries’ ability to do the same to their citizens located in the U.S. Obama's campaign and the DNC gave us a very good example of that by citing that Obama's status is governed by the British Nationality Act of 1948.

[Nero Germanicus]

There has not been a serious challenge to the ruling in Wong since 1898. That!’s why it is settled law.
According to Westlaw, Wong Kim Ark has been cited in subsequent cases more than 1000 times. Now THAT’s “settled law.”
http://en.wikipedia.org/wiki/Westlaw

[MHGinTN]

“See what happens when a president is elected who can’t reveal his birth credentials?” Indeed, we see posters like Nero Germanicus, Mr. Rogers, Jeff Winston, and a gaggle of other obamapologists posting almost daily their twisted assertions seeking to legitimize a fraudulent lying half black enemy of the Republic.

[Rides3]

There has not been a serious challenge to the ruling in Wong since 1898.

Perhaps it's time there was a challenge, as it contains rather serious factual errors in some of the assumptions that are stated.

Such challenges, however, wouldn't be necessary if we all would take the Supreme Court at their word:

"The question presented by the record is whether 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"

And...

"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent 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."

[Rides3]

...Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.” Lynch v Clarke 1844

A state court ruling, which was then promptly negated by the federal Civil Rights Act of 1866:

"all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States"

And even after the 14th Amendment changed the language from that to: "subject to the jurisdiction," U.S. Secretary of State citizenship determinations found that those born in the U.S. to alien fathers who were not permanently domiciled in the U.S., were NOT U.S. citizens (Hausding and Greisser rulings).