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.”
Would you happen to have a link handy showing “the first law of Naturalization that George Washington signed into law would make Ted Cruz a NBC.”
The one everyone really has misgivings about.
Raphael Cruz
I like him.
Did someone amend the Constitution sometime between 1790 and 1795?
If the First Congress, you know, the one with all the people who were present at the Constitutional Convention, defined the Children of Citizens born abroad as Natural Born Citizens, then isn't it logical to conclude that the definition as used by that congress, as opposed to the Third Congress, is the definition that the drafters intended?
The Third Congress did not redefine Natural Born Citizen, they simply failed to redefine it in the later legislation.
Additionally, no Congress has the authority to change the definitions of the words in the Constitution. Therefore under the rules for statutory interpretation, the definition in the 1790 law is still in effect, because that was the definition given by those who drafted the Constitution in the first place.
Now are you willing to give Ted Cruz the benefit of the doubt on this issue? Or are you willing to let the Country sink because you have some doubt about this issue?
Yes, there is reasonable doubt. Yes, it should and likely would be resolved in favor of Ted Cruz.
I have and do support Ted Cruz. He hasn’t declared, but if he stays the course he’s on now and does declare, I can and will support Ted Cruz. That probably makes me a hypocrite. So be it. Saving all of the Constitution versus enforcing three words is more important to me right now.
My plea is that you not force a whole group of FReepers who have invested five long years carefully forming their opinions to decide right this very minute where they will stand on a hypothetical Ted Cruz candidacy. Give them time to find some peace of mind. It’s not too much to ask either.
I’m with you. Many others will be too. It’s going to take some time though, ok? It’s a very raw wound for them.
Either give it a rest or go somewhere else to post. I’m not interested in your slander of two great conservatives (Levin and Cruz). Drop it or begone!!
It is not up to me, it is up to Jim Robinson to determine how much rope he will give them before they hang themselves.
Right now this issue is being pushed on a daily basis either by the GOPe, the MSM, or freepers with a destroy-Ted-Cruz agenda. It is a hot button issue and IMHO it should be dealt with now. We can't sit by idly and allow Ted Cruz to be undermined on this forum. IMHO, those who think this issue is more important than saving the blessings of Liberty for our posterity, should seek a new forum to poison the well.
Thanks, very much.
Yes, it’s loud and clear:
“It also provided for citizenship for the children of US citizens born abroad, ..”
http://en.wikipedia.org/wiki/Naturalization_Act_of_1790
I wish more of our conservative talk show hosts would get this information out.
And specifically defined them as "Natural Born" Citizens.
When I was the one who wanted them dealt with “right now,” Jim asked me to settle down and let FReepers work it out amongst themselves. So I did and very begrudgingly at first.
I decided to trust Jim’s judgment. I respected his decisions and it all worked out. He hasn’t failed me yet! This too shall pass.
Jim won’t be forced into dealing with anything before he’s damn good and ready. Right now, he’s given fair warning about trashing Cruz and where he stands on a Cruz presidential run. So it is being dealt with.
I don’t want to lose more FReepers than necessary. So, again, I’m going to trust Jim.
Peace, my FRiend,
Tex
“And I thought to myself, you know I, this is not a subject that I have studied so thoroughly, but he’s born of a mother who is an American citizen. Doesn’t that make him a natural-born Citizen?… “
That’s utterly mind boggling.
Free Republic is NOT a GOP cheerleading site. And I don’t give a flying fig what some cowardly anonymous “insider” says.
I don’t mind people disagreeing with me, but the NBC purists who poison the well and are seeking to proselytize those on the fence on this issue are a dangerous lot. Even the most pure literalist on this issue should admit to themselves that because this is an obscure issue and all arguments on both sides are esoteric at best, that there must be some reasonable doubt in any reasonable mind as to whether or not Ted Cruz is eligible.
Those who claim he is not eligible would have a duty in court to present “clear and convincing evidence” that Ted Cruz is not eligible and then all reasonable doubt would have to be resolved in Favor of Ted Cruz.
As an attorney of more than 25 years, I can say with certainty that there is not a snowball’s chance in Hell that any lawsuit challenging Cruz would be successful.
That is a near impossible burden to overcome when it is clear, as you and I both know, that there are reasonable arguments on both sides.
So those who are willing to die on the hill in opposition to Ted Cruz on the alleged basis that he is not a NBC, when it is so critical to our future as a nation to elect such a man as he, are delusional.
I have a two year old granddaughter who is relying upon me and you and all pro-life Christian conservatives to preserve the blessings of Liberty to her and her children. I am not going to sit idly by while people who should know better are poisoning the well that feeds the tree of Liberty that is her rightful inheritance.
You don’t even know that FR is NOT a blog(!) and what gives YOU the right to use the word “we” in such an untruthful manner. A whole bunch of “us” only believe Zero’s not eligible IF he wasn’t born in this country, based on the SAME law that declares that Cruz IS eligible.
That ship has sailed as to Barack Insane Obozo. I don't believe in hamstringing ourselves and not our opposition. Let's get the White House back along with the executive branch of the fedgov. Then we (not RINOs but WE) can take a second look a) at each and every Obozo policy, b) the records of Obozo's totalitarian rule, c) the documentation behind Obozo's claims to citizenship.
IF anyone is born in the United States of parents who are not foreign embassy personnel and are therefore are subject to US legal jurisdiction by virtue of their presence here OR are born abroad of at least one US citizen parent, then that person is a NBC. When claims are made that one MUST have been born of two US citizens AND have been born in the US to be a NBC, then the claimant (if claiming conservatism) makes us look like Keystone Cops.
As with all matters legal, there is a longer form argument to take into consideration such matters as a statute at the time of Obozo's birth which denied to an American mother (but not an American father) the right to pass citizenship to a newborn where the mother was between 18 and 21 years of age. That short-lived statute would be laughed out of any court today as an obvious violation of equal protection based on the suspect category of sex. If you think about it, it is a lot easier to KNOW who the mother is than who the father is, absent DNA testing. I am not very anxious to require DNA tests to prove NBC status.
“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.”
I thought that, under the Constitution, Congress could establish who is a naturalized citizen, but that “natural born citizen” was a Constitutional determination. If a parent is a citizen at the time of the child’s birth, how can Congress limit “natural born citizens” to children whose parent(s) have lived here for x many years? It has power in regard to naturalized citizens, not in regard to natural born citizens. Isn’t requiring residency by a citizen parent for x years an additional requirement for the child to be a natural born citizen and, thus, beyond Congress’ power?
In any case, I think Cruz is a natural born citizen.
“..A whole bunch of “us” only believe Zero’s not eligible IF he wasn’t born in this country, ..”
But it’s far more complicated than that IF Obama was born in another country, and IF Obama’s mother expatriated herself, as some believe to be true.
But that is for another thread.
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