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.

[noinfringers2]

The reference appears to ignore that the Founders were actually aware/thinking of the present and the future. I believe that in that day and age the possibility of an overseas birth was not out of the minds of the Founders who themselves were of and had ‘old country’ connections. I am also inclined to think/believe that they were wary of anyone born in a foreign country as to enduring allegiances. As such the Founders thought that the qualification ‘natural born’ would suffice. In today’s political world the qualification is take to mean to apply to any person of choice, especially Obama.

[Mr Rogers]

A state court ruling cited with approval by the US Supreme Court.

You can try quoting rulings used in the DISSENT of the WKA decision, but by definition, the DISSENT is written by the side that LOSES. Those rulings were contrary to the conclusion of Lynch v Clarke, and were REJECTED by the US Supreme Court. Rejected. That means that side (yours) lost. In 1898. Deal with it.

[Rides3]

Why would the Supreme Court cite a state court ruling that was subsequently quickly negated by federal law? Which Supreme Court decision cited it? There's yet another indication that serious errors of fact are committed by whoever is writing Supreme Court decisions.

And I never quoted any dissenting WKA opinions. I'm merely citing actual historical facts.

[MHGinTN]

You cannot reason with the closed mind such as being exhibited by the obamapologist whose leaving lip mark hickies on little barry bastard boy’s backside.

[MHGinTN]

Don't expect honest discussion from an obamapologist leaving lip hickeys on little barry bastard boy's backside. They run these threads to sow as much confusion and deception as they can get away with.

[Nero Germanicus]

The Founders made provisions to alter their thinking on any issue via the constitutional amendment process. No one has ever been able to find any minutes or any notes from the Constitutional Convention which indicate that any discussion of the natural born citizen phrase ever took place.

We know from those Constitutional Convention minutes and notes that one of the most important issues discussed was the very structure of the government of the American Republic which, without resolution, would not have permitted a union of states to come together. That resolution was achieved through what came to be known as “The Great Compromise of 1787:” (which was approved by one vote) that the composition of the House of Representatives would be proportional by state population and would be popularly elected directly by the People and the Senate would be composed of two Senators from each state who would NOT be directly elected by voters but rather would be elected by state legislatures. That structure of the legislative branch that the Founders designed was in place from 1788 until 1913 when the adoption of the 17th Amendment provided for the direct election of U.S. Senators, something a slim majority of the Founders had opposed.
http://www.senate.gov/artandhistory/history/minute/A_Great_Compromise.htm

Times change, the world changes and the modern era interpretation of the citizenship clause of the 14th Amendment along with Supreme Court rulings on its meaning have altered the judicial and congressional view of who is a natural born citizen. The first two words of the citizenship clause are “All persons...” and is inclusive of persons who would be president and vice-president.

“The Constitution does not say, in wors, who shall be natural born citizens. Resort must be had elsewhere to ascertain that.”—Minor v. Happersett (1874)

[Nero Germanicus]

The current Supreme Court has been presented with numerous (20) attempts to challenge Barack Obama’s natural born citizen status (not all of those attempts are based on challenges to the holding in Wong Kim Ark ). The current Supreme Court has shown no interest in this issue.

[Rides3]

The current Supreme Court has shown no interest in this issue.

I'm well aware that the current Supreme Court believes that U.S. citizens have no right whatsoever to ask that the Constitutional eligibility of the president be verified.

That's how far our Constitutional Republic has fallen. The citizens no longer have the right to question government officials.

Can you say totalitarian fascism? Why, yes, you can.

[SvenMagnussen]

"... 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"

With respect to citizenship rights, the rights of the native born are enumerated in the 14th Amendment. Under the 5th Amendment, the Equal Protection Clause, it is unconstitutional to distinguish between a Naturalized U.S. Citizen and a Native born citizen; with one exception, only a Natural born citizen is eligible for POTUS and VP under Article 2 of the Constitution.

The Tenth Circuit Court of Appeals has opined there is not right of a U.S. Citizen to be classified as a Natural born citizen. Classification of some U.S. Citizens as Natural born, while denying other U.S Citizens the same classification due to their circumstance of obtaining U.S. Citizenship would violate the 5th Amendment. Consequently, no U.S. Citizen as a right to be classified as a Natural born citizen.

Consequently, the only way to determine who is eligible for POTUS is to determine who is not eligible. U.S. Citizens who obtained their U.S. Citizenship through statute, the Immigration and Naturalization Act, are not 14th Amendment U.S. Citizens and cannot be eligible for POTUS. Although it is undefined, SCOTUS has opined Natural born citizenship status is a subset of the native born. Not all native born are natural born citizens, but most are. Children of diplomats born in the U.S. are native born person, but they are not Natural born citizens because they are not U.S. Citizens.

[Nero Germanicus]

Well there’s that.

Or, the issue has already been resolved to their satisfaction by previous Supreme Court and lower court rulings.

My personal opinion is that unless the candidates who were denied the presidency by an ineligible candidate winning more electoral votes were to be the plaintiffs, there is just no way that the Supreme Court would get involved (despite what the liberals said about Bush v. Gore).

Neither McCain, Palin, Romney nor Ryan filed suit, joined a citizen initiated suit as co-plaintiffs or even filed an amicus brief in support of an existing challenge, and they were the only people who received electoral votes and could demonstrate DIRECT injury.
The Supreme Court is highly unlikely to entertain overturning the electoral will of the voters, particularly not a conservative majority court who believe in separation of powers.

[Mr Rogers]

WKA did.

“That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.”

“And I never quoted any dissenting WKA opinions.”

You didn’t quote, but the reference you used came directly from the dissent in WKA. Without the DISSENT of WKA, you would never have found out about Hausding and Greisser.

Federal law does not trump the US Constitution.

They also cited this:

“In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:

All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html

And about the only place where Hausding and Greisser can be found is in the dissent (losing side) of WKA.

[nosf40]

More spin from an Obot. It was very convenient that a “leading legal website” removed references to Minor from other SCOTUS cases in 2008, just as the eligibility issue was raised. It was not a fantasy - Justia was caught red-handed - snapshots of their web pages before and after the change were compared. They have intentionally mislead the US public - not a big deal for an Obot who does the same on FR on a daily basis.

[Mr Rogers]

Anyone who wanted to find Minor could do so easily. And Minor specifically did NOT define the limits of NBC, nor was that a part of their concern. For the purposes of the court, Minor could have been a naturalized citizen. It would not have changed the outcome. It was a voting rights case:

1. The word “citizen” is often used to convey the idea of membership in a nation.

2. In that sense, women, of born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.

3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had.

4. At the time of the adoption of that amendment, suffrage was not coextensive with the citizenship of the States; nor was it at the time of the adoption of the Constitution.

5. Neither the Constitution nor the fourteenth amendment made all citizens voters.

6. A provision in a State constitution which confines the right of voting to “male citizens of the United States,” is no violation of the Federal Constitution. In such a State women have no right to vote.

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

And this “Obot” was a part of FreeRepublic 10+ years before you were, since 1998.

[noinfringers2]

First of all I have reports/writings that certainly connect the Founding Fathers especially by Franklin and Washington that the thought/idea of ‘natural born citizen’ was familiar to them during the Convention discussions. These are not secret and came to my attention early when I first became interested in the matter. Your quote of Minor vs Happerset is incomplete and does not cover what all was said about a ‘natual born citizen’. Secondly, I cannot figure out how your info on Congress ‘s structure rebuts the fact that the Constitution explicitly differentiates in Article I and Article II between a ‘citizen’ and ‘natural born citizen’.

[Rides3]

WKA did. “That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.”

WKA also cites Minor v. Happersett, an ACTUAL Supreme Court case:

"In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." And he proceeded to resort to the common law as an aid in the construction of this provision."

We already know that Minor v. Happersett defines natural born citizen thusly:

"At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners"

We also are quite aware that those born in the U.S. to an alien parent whose country asserts jus sanguinis citizenship law, are born foreigners (foreign citizens). Obama's campaign and the DNC admit to exactly such when they posted on their own website the fact that the British Nationality Act of 1948 governed Obama's status:

[Rides3]

“The Constitution does not say, in wors, who shall be natural born citizens. Resort must be had elsewhere to ascertain that.”—Minor v. Happersett (1874)

Followed immediately by:

"At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners"—Minor v. Happersett (1874)

As I've already stated, those born in the U.S. to an alien parent whose country asserts jus sanguinis citizenship law, are themselves foreigners.

[Nero Germanicus]

And immediately following what you excerpted, the ruling in Minor says: “Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.”

You can believe that if you want, but 24 years AFTER Minor v. Happersett, the Supreme Court ruled that: [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’”

[Mr Rogers]

You aren’t big on quoting things in context, are you...but then, most birthers are not. That is why birthers get their butts handed to them every time they get in court.

[Rides3]

And immediately following what you excerpted, the ruling in Minor says: “Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents.

Yep. "Citizens." Not "natural-born citizens." Only those born in the U.S. to U.S. citizen parents are defined as "natural-born citizens."

And citing quotes referring to natural-born subjects is irrelevant. The U.S. has citizens, not subjects. The U.S. is a Constitutional Republic, not a Constitutional Monarchy. The U.S. fought a revolution and declared independence from the Monarchy. Remember?

[Rides3]

See post #159