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.”
Those three little words are perhaps some of the most important in our Constitution. They were intended as a unique protection, one we do still need today.
Whatever you think of those words, removing them will not restore our republic. My personal fear is that it will have the exact opposite effect, because what will follow in the years after the Ted Cruz type candidate once we open that door?
We are the biggest prize the world has known.
"We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the 'natural born' citizen is eligible to be President."
[Article II; Section I]
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
Now.....how many types of citizens are mentioned in this paragraph? Three? Four? No! Only two! Would that imply to you that there is a difference between these two?
If you answered yes.....what do you suppose that difference would be and why do you think this phrase was "grandfathered"?
Now......where does this paragraph speak of Naturalized citizens....the third type? It doesn't.
Justice Douglas is stating very succinctly that Native born and Naturalized citizens are very similar. But....only Natural Born Citizens are qualified to be the "Commander in Chief". If you believe he was equating "Native" born with "Natural" born.....then why does he use two different adjectives?
Now.....according to [Article II; Section I] do Citizens of this country cease to exist after a certain period of time? Of course they don't. They just no longer are qualified to be the "Commander in Chief" (if they were not yet born at the time of the signing of the Constitution)! After all the potential Presidential aspirants had died off after the Constitution was ratified....then normal citizens (which they had been) were no longer allowed to be "Commander in Chief".
They had not been born to U.S. Citizen parents....so they were not called "Natural Born"....only "Citizens" (Native Born) and that how Article II; Section I] defines them......Citizens! But until they had all died off the grandfather clause still allowed them to seek the Presidency.
Thus...............Justice Douglas in his opinion has identified all three types of Citizens and very pointedly has indicated......only "Natural Born Citizens" were qualified to be President.
At the time the Constitution was written native born and natural born meant the same thing.
Having drafted military regulations, a good writer will cover all terms that might be used. That does not suggest each term has a separate meaning. For example, the US Supreme Court has written: “Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency.” Notice they use “native” when NBC is more accurate - but the US Supreme Court tends to use the terms interchangeably.
Also:
“”It is not disputed that if petitioner is the son of Kwock Tuck Lee [Chinese] and his wife, Tom Ying Shee [also Chinese], he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U.S. 649. But, while it is conceded that he is certainly the same person who, upon full investigation, was found, in March, 1915, by the then Commissioner of Immigration, to be a natural born American citizen, the claim is that that Commissioner was deceived, and that petitioner is really Lew Suey Chong...” A “a natural born American citizen” born to 2 Chinese parents!
And “”Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States; .... “
And IF the Constitution HAD followed Vattel, it would have used “native” to describe someone born to 2 citizen parents, not NBC.
Again, Native born Citizen and Natural born Citizen are not the same thing. They are two different subsets of Citizen.
Really!!! Then please explain these words of Justice Waite in Minor vs Happersett:
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. 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. 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. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.“
Absolutely incorrect! Why in the world would they have written something so redundant....mentioning both terms in one paragraph?
At the time of the signing there were no "Natural Born" Citizens yet. It was a brand new country! But as time went by new folks were being born all the time to parents who were citizens of this new country.....and they were referred to as "Natural Born".
After a long time they were no Citizens left alive who had been alive at the signing of the Constitution and that's when the grandfather clause took effect. At that point....only Natural Born Citizens could seek the Presidency. Anyone born in the country (Native Citizens) to non-citizen parents were eliminated from consideration.
“..He has a Canadian birth certificate..”
That wouldn’t invalidate his UNITED STATES Natural Born citizenship. The Canadian laws should not affect our laws.
One generation.
But does “natural born” mean “native born” or “naturalized” - meaning the Justice himself wrote this very sloppily.....not something to hang a 200 year hat on.....
More words doesn’t make your attempt at parsing any more convincing. There are only two categories of American citizenship: born citizens and naturalized citizens.
The first President who qualified as a natural born citizen was Martin Van Buren, elected in 1837. All previous presidents were elected under the provision of being “citizens at the time of the adoption of this constitution.”
The requirements for born citizenship that are applicable to Obama and Senator Cruz fall under 8 U.S.C. § 1401.
“For Obama, the applicable section of the law is:
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;”
For Senator Cruz the applicable section of the law is:
The following shall be nationals and citizens of the United States at birth:
“a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years...”
I’m open to having my mind changed on this subject however. If you can find any judge in America who believes that native born and natural born are not synonymous, I’d love to read their opinion.
A bit more Supreme Court back up for my position.
Elk v Wilkins, 112 U. S. 94 (1884):
“The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the constitution, by which ‘no person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president;’ and ‘the congress shall have power to establish an uniform rule of naturalization.’ Const. art. 2, § 1; art. 1, § 8.”
“This section [of the 14th Amendment] contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”
Minor v. Happersett (1874): “Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,’ and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization.”
It means neither.
Natural Born is born of two citizen parents....where ever. If my folks had been visiting a foreign country or temporarily residing there because of business or some other consideration....and indeed had planned on (and in fact did) return to this country after my foreign birth.....I would be called a "Natural Born" citizen. I derived that status by blood and by the fact my parents were citizens.
If I had been born in this country of non citizen parents (or only one citizen parent) I would be called a "Native Born" citizen. Indeed a citizen....but ineligible to become the "Commander in Chief" because of potential divided loyalties to the home country of my one (or both) non citizen parents.
Naturalized Citizen is a citizen by statute....and not birth.
Justice Douglas referred to all three in his decision.
“An elected & executive cannot be removed from office over eligibility alone. It’s simply not constitutional.”
It would provoke an impeachment, IMO or a constitutional crisis and there is no precedent. Knowing that legal scholars can disagree over anything I wouldn’t be so confident as you are that he can’t be removed on eligibility alone. But I expect he would be impeached for lying. That would be much more likely.
“All that could be accomplished, is to create more anger and resentment of Obama among those of us who already oppose him, and give the Dims an opening to attack Cruz.”
I don’t follow your logic. I don’t see why that would be. Look at what happened to Nixon. When evidence came out that he had been lying and covering things up, his own party turned on him.
I Barry has been lying about a foreign birth, Ted Cruz has a better claim on eligibility and Dems wouldn’t be able to attack him without damning Barry.
I ran across this comment of yours the other day and I was shocked and amazed. You DID Understand the point! Only the Father's citizenship mattered because women were naturalized (if foreign) by marriage.
There was never a condition in which parents ever had differing nationalities. (Until 1922.)
“Again, Native born Citizen and Natural born Citizen are not the same thing. They are two different subsets of Citizen.”
Only in YOUR mind...an assertion is not an argument.
Would your opinion on the eligibility of Ted Cruz in any way be swayed if you knew tha George Washinton, the Father of our Country, in 1790, the year after the Constitution was ratified, signed into law a provion which stated that the Children of Citizens born outside the United States are to be considered as Natural Born Citizens?
They WERE interchangeable and synonymous. Over time, the meanings diverged. The meaning of the word "native" has undergone a transformation from what it meant back in 1787.
Schneider v. Rusk (1964):
“We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘ natural born’ citizen is eligible to be President. Art. II, s 1.”
This is a modern meaning which has been crippled by the incorrectly expanded precedent of Wong Kim Ark. Before people's misunderstanding of Wong Kim Ark became common place in most legal minds, the meaning of the word "native" was very clearly synonymous with "natural born."
WAITE, C.J., Opinion of the Court
SUPREME COURT OF THE UNITED STATES
88 U.S. 162
Minor v. Happersett
Argued: February 9, 1875 --- Decided: March 29, 1875
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. (Bye Bye 14th Amendment!) 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.
As you can see from the superior authority I cited, the word "native" did not mean what you take it to mean nowadays. Modern Usage of the word has simply been transformed from it's original meaning.
It requires an impeachment and a conviction to remove a sitting president. Impeachment alone had no substantive effect on BJ Clinton. If our elected congressmen had anything like the character and integrity to take that action, we wouldn’t now be in the situation where Freepers are claiming that Ted Cruz is the only man who can save the republic. QED.
Nixon was never impeached and removed from office. The Dims will never turn against “the won”, no matter how many lies he tells, or how many dogs he eats. IOW: It ain’t gonna’ happen. But if Obama were removed from office for not being born on U.S. Soil & lying about it, it would be absolutely impossible to diferentiate, in the minds of the no-info voters, Ted Cruz not being born on U.S. soil & telling the truth. Never put your faith in governments instituted of men.
I've a better idea. Since we know that three different types of citizens exist (according to the framers) [Article II; Section I] (not including Naturalized citizens) why don't you find me a quote by a Federal Judge which states there is no difference.
“This section [of the 14th Amendment] contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”
The 14th amendment did not deal with Presidential requirements. It dealt with the status of freed slaves.
To the board:
Folks...........consider. Why did the framers want only presidential candidates to be born of two citizen parents? Let's look at Bobby Jindal of Louisiana:
He was born in the United States (Baton Rouge) in 1971 to parents who were citizens of the nation of India. Thus, Bobby.....constitutionally is a "Native Born Citizen" but not a "Natural Born Citizen". Now think..........
It's sometime in the future and President Jindal is considering our nation's stance in the ongoing "Nuclear threats" between Pakistan and India. It is bringing the world closer to catastrophe every day.
Do you see the wisdom of our founders when they stipulated that only "Natural Born Citizens" should be the Commanders in Chief?
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