Posted on 08/30/2013 12:02:15 PM PDT by Jim Robinson
By Ilya Shapiro, Senior Fellow In Constitutional Sudies and Editor-In-Chief, Cato Supreme Court Review
As we head into a potential government shutdown over the funding of Obamacare, the iconoclastic junior senator from Texas — love him or hate him — continues to stride across the national stage. With his presidential aspirations as big as everything in his home state, by now many know what has never been a secret: Ted Cruz was born in Canada.
(Full disclosure: I’m Canadian myself, with a green card. Also, Cruz has been a friend since his days representing Texas before the Supreme Court.)
But does that mean that Cruz’s presidential ambitions are gummed up with maple syrup or stuck in snowdrifts altogether different from those plaguing the Iowa caucuses? Are the birthers now hoist on their own petards, having been unable to find any proof that President Obama was born outside the United States but forcing their comrade-in-boots to disqualify himself by releasing his Alberta birth certificate?
No, actually, and it’s not even that complicated; you just have to look up the right law. It boils down to whether Cruz is a “natural born citizen” of the United States, the only class of people constitutionally eligible for the presidency. (The Founding Fathers didn’t want their newly independent nation to be taken over by foreigners on the sly.)
What’s a “natural born citizen”? The Constitution doesn’t say, but the Framers’ understanding, combined with statutes enacted by the First Congress, indicate that the phrase means both birth abroad to American parents — in a manner regulated by federal law — and birth within the nation’s territory regardless of parental citizenship. The Supreme Court has confirmed that definition on multiple occasions in various contexts.
There’s no ideological debate here: Harvard law professor Laurence Tribe and former solicitor general Ted Olson — who were on opposite sides in Bush v. Gore among other cases — co-authored a memorandum in March 2008 detailing the above legal explanation in the context of John McCain’s eligibility. Recall that McCain — lately one of Cruz’s chief antagonists — was born to U.S. citizen parents serving on a military base in the Panama Canal Zone.
In other words, anyone who is a citizen at birth — as opposed to someone who becomes a citizen later (“naturalizes”) or who isn’t a citizen at all — can be president.
So the one remaining question is whether Ted Cruz was a citizen at birth. That’s an easy one. The Nationality Act of 1940 outlines which children become “nationals and citizens of the United States at birth.” In addition to those who are born in the United States or born outside the country to parents who were both citizens — or, interestingly, found in the United States without parents and no proof of birth elsewhere — citizenship goes to babies born to one American parent who has spent a certain number of years here.
That single-parent requirement has been amended several times, but under the law in effect between 1952 and 1986 — Cruz was born in 1970 — someone must have a citizen parent who resided in the United States for at least 10 years, including five after the age of 14, in order to be considered a natural-born citizen. Cruz’s mother, Eleanor Darragh, was born in Delaware, lived most of her life in the United States, and gave birth to little Rafael Edward Cruz in her 30s. Q.E.D.
So why all the brouhaha about where Obama was born, given that there’s no dispute that his mother, Ann Dunham, was a citizen? Because his mother was 18 when she gave birth to the future president in 1961 and so couldn’t have met the 5-year-post-age-14 residency requirement. Had Obama been born a year later, it wouldn’t have mattered whether that birth took place in Hawaii, Kenya, Indonesia, or anywhere else. (For those born since 1986, by the way, the single citizen parent must have only resided here for five years, at least two of which must be after the age of 14.)
In short, it may be politically advantageous for Ted Cruz to renounce his Canadian citizenship before making a run at the White House, but his eligibility for that office shouldn’t be in doubt. As Tribe and Olson said about McCain — and could’ve said about Obama, or the Mexico-born George Romney, or the Arizona-territory-born Barry Goldwater — Cruz “is certainly not the hypothetical ‘foreigner’ who John Jay and George Washington were concerned might usurp the role of Commander in Chief.”
You want bare-bones Natural law?
Presidential candidates shouldn't have divided loyalties.
I as a voter don't see a divided-loyalty bone in Cruz's body.
“Almost FIVE years after the usurpation of the presidency and Levin says he hasn’t studied it very thoroughly.
“
Thoroughly to him is not a mere google search as it is to you. It is legal research taken on facts, law, case studies, and papers written by legal scholars with the bona fides. No doubt he has studied this in far greater factual detail than you have; he just won’t call it “thorough research”.
God Bless Ted Cruz.
Law should be chains to restrict the mischief of government.
plum is just being a childish smartass, looking to get zotted. I think Jim made himself perfectly clear.
“Everyone at the time knew exactly what the phrase meant.”
You were alive then and spoke to everyone? Didn’t think so. Everyone spoke English and knew that natural born meant citizen by virtue of birth, not some contorted and ridiculous definition not stated in any way.
“If the citizen at birth / born citizen was the qualification what function does the word “natural” have.”
Go back and read my word, Ms. Expert in English. I think I stated myself perfectly with no need to repeat the words. Idiot.
“So you’re saying Obama is too legit to quit?”
Where did I say that? Please quote my post that implies that or apologize, moron.
“They are wholly one thing or parts of another.”
Then you are parts of wherever every single ancestor you have ever had came from. That could even make you middle eastern, maybe an Arab or a Muslim, maybe Jewish, or even African. All we have to do is go back far enough, right? All Americans are mutts in some way if we go back far enough.
The State Department's Foreign Affairs manual says that the courts have not ruled on it.
7 FAM 1131.6-2 Eligibility for PresidencyFWIW, I believe there should be an exception for military children and that the courts would rule in favor of eligibility.
(TL:CON-68; 04-01-1998)a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.
d. (snip) In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.
Not at all sure where you got the idea that I’m anti-Cruz, or even remotely supportive of anyone teaing him down.
You’ve got the wrong idea.
I enjoy the spirited debate of conservative positions, candidates and principles on Free Republic, and my posting history will show that I can accomplish that without attacking anyones character or intentionally mischaracterizing their statements.
My remarks were stated in general. You’re the one who took it personally and asked for clarification. If it doesn’t apply in your case you have nothing to worry about.
Ok.
Winston Spencer Churchill was born in Blenheim, England. His father was Lord Randolph Churchill. His mother was the former Jenny Jerome of Brooklyn, New York. Winston Churchill was never a citizen of the United States, or indeed a natural born citizen.
Of course he wasn't. For in 1963 by proclamation, he was declared an honorary citizen of the United States. This by President Kennedy.
An American mother then, did not give citizenship to her son Winston Churchill. Yer Framers of the Constitution must be turning in their graves.
Nope! I wasn't yet born....but I sure can read what folks of the era wrote....and understand what they meant. For instance....here's an Act passed by Congress in 1790 which most assuredly defines the term Natural Born:
snip: "And the children of citizens (plural) 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"
Congress defining the term in "An act to establish an uniform Rule of Naturalization" (3,26,1790.
24 years later....here is what "Chief Justice Livingston" had to say in the decision of "The Venus- 12 U.S. 253 (1814)":
snip: "As this question is not only decisive of many claims now depending before this Court, but is also of vast importance to our merchants generally, I may be excused for stating at some length the reasons on which my opinion is founded.
The whole system of decisions applicable to this subject rests on the law of nations as its base. It is therefore of some importance to inquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character or partaking of the character of the nation in which they reside.
Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says "The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights."
The Chief Justice of the Supreme Court quotes "The Law of Nations" directly and provides the definition.....born of parents who are citizens!
So....for you to say the folks of the late 18th century (early 19th) did not know the definition of the term.....is so much hogwash.
Jim, Compromising the Constitution makes it worthless as well as elevates the current criminal usurper. Please reconsider your view on this. Truth and the law are on our side.
All things being relative
Sorry, Cruz is a natural born citizen. Nothing compromised.
We are talking about the issue of NBC .
how does your nonsequitor fit in the discussion?
ZOT!
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