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.”
OMG! ROFLOL
Never has so much been said in so few words!
How about trusting Justice Waite in Minor vs Happersett???
BTW aren't you getting a little ahead of yourself??? Unless I am mistaken Ted Cruz has not declared his candidacy, and yet there are still patriots who are still fighting the battle over O's eligibility -- like Sheriff Joe Arpaio.
Are you going to abandon them now in the midst of the battlefield and silence those who support them???
I don’t disagree with your larger thesis. My only point was that Vattel was Swiss, not French.
I’m trying like hell to support and promote your proposition. I think it’s a great idea. It gives everybody time to see where things go with Cruz without alienating one side or the other. I don’t want to see a bunch of good FReepers get the zot over this.
I noticed a few on the "not eligible" side have done so, I only wish more would consider doing so.
This thread, along with a couple of zots came after we started discussing the truce. I think JR has tipped his hand as to what he will do if things don't go the way of cease and desist. I hope it doesn't come to that, we need everyone here to concentrate on fighting the totalitarian left, not each other.
I think he aslo invented Velveeta. Heh. I needed a laugh.
How can you call yourself a patriot in a day such as this when you can’t resist the temptation to surrender your own Liberty to a bunch of senile unelected buffoons, the opinions of whom you seem to respect more than Liberty itself?
__________________________________________________
This I will weigh in on...
PM for several days now you have questioned the very patriotism of those who would wonder at the eligibility of someone they are eager to champion but want to endorse with no hesitation or reservations...
as a Conservative who loves Amertica and the Constitution.should...
such as myself...
You appear to want to entertain court room drama in these threads and not concerned debate...
Do you see youself in the comment you gave to Kenny Bunk ???
Rather than expecting surrender however, you seem to be demanding that only your own oppinion be accepted and the liberty of others be squelched...
We are many months from 2016 ...the first debates will come at the end of 2015...
Many of us have the highest respect for Ted Cruz and the noblest of intentions...
If Ted Cruz runs and is own nominee I will gladly get behind him and encourage others to also...
But meanwhile, I have to live under the shadow of the suspicions and accusations and hatred of that-guy-in-my-White-House TM for 3 more years..
I’d rather in the case of my fellow sufferers, find liberty and tranquility and agreement and not the the same unconstitutional treatment...
You have said many things, now I expect to find examples of your fervent belief in them...
Although when you wrote, “You are a sovereign individual with a remnant of the Liberty” I would have perferred you meant all liberty is ours rather than the partial you appear to allow us...
I realize you are impassioned in your comments, but there are many loyal Americans in these threads who like myself are veterans who volunteered to defend our country...
Our love and regard for our country is genuine..
Like me they think that America is the greatest country on Earth...
Why are we Conservatives and the TEA Party if we must be horse whipped so ???
Your words sting not because they are true...
But because they are unnecessary and we are not children but men and women who have stood up for our God, our country and Conservatism...and LIBERTY
Personally while I would readily vote for certain candidates or perform certain activities, I will not be whipped or shamed into action...
That is not LIBERTY...
back in June, in Manchester, TN, when we stood outside the meeting of the Islamists wanting to steal our 1st Amendments rights and falsely accuse us of hate crimes ...We were shouting FREEDOM !!! FREDOM !!! FREEDOM !!! like a group of Braveheart warriors, but I never expected to have to echo the same here...
I find myself having to do so now...
FREEDOM !!! FREEDOM !!! FREEDOM !!!
For what is an Amertican if he or she is not FREE...
Tennessee Nana
American citizen
Alexander Hamilton told us to look to the language of the English law to define the terms in the Constitution (1795 legal brief). In 1787, English law defined natural born as anyone born in the country and anyone born outside the country to English subjects.
Article II Section 1 empowers and commands state legislators to appoint, as they “may direct,” presidential electors.
Conservatives should resist falling into the “let scotus decide” mindset of the Left.
The last think our republic can stand is further judicial interference with the political process to point that scotus gets to determine who can be president.
For five years, they’ve been allowed to speak and debate freely amongst themselves on the eligibility threads. Now that the eligibility discussion involves Cruz, it’s gone mainstream on FR. Jim told us where he stands. So, the birthers are facing a whole new reality at FR. I’m sure that’s a shock to their system. It’s going to take time.
You mean where he said the following:
Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided "that any alien, being a free white person," might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens. [n8] These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since.
I sincerely apologize to you if I seemed rude. That was not mt intent.
Amen.
Me? Kemosabe???
LOL
Quite correct. If one state's AG had challenged Obama's eligibility in 2008, or 2012, it might have gotten resolved at the correct time.
Candidate qualifications are evaluated in every election in every state. Quite a few candidates are challenged in every cycle.
Bunk? It is precisely our state officials who took a bunk on this matter. I believe it to be a legitimate question. Others do not.
Read it carefully and compare it to his words in #334.
He is saying that those born of citizen parents overseas are no less “citizens” than natural born citizens, ie those born of citizen parents at home.
Key words: “shall be considered as”
Tell me the process.
An AG challenges . . . goes to a state court . . . then what?
Therein lies the unanswered question for many birthers. If such citizens have no constitutional right to their citizenship, how is their statutory citizenship at birth equivalent to those for whom no statute is necessary, such as 14th Amendment citizens?
Is it your position that we should resolve any such doubts in favor of those citizens? Are you saying that a constitutional right to citizenship was not intended by the FF?
SCOTUS, in a decision by William O. Douglas (therefore nearly 40 years ago) struck down bastardy as a relevant legal classification. I never cared for Douglas but that decision made sense in that the child has no say-so in the fornication or adultery giving rise to his/her birth. Given the rising tide of out of wedlock births, bastardy is problematical at best.
So did I, thanks for the giggle!
If he was French it would have been Camembert, Brie, or Roquefort.
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