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.”
Thank you for this reminder. I’ve come to have a great deal of disdain for “expediency” after living in and cleaning up its messes. If only we had hindsight’s 20/20 vision in the “Before” picture or heeded the warnings that gave us our ideals, commandments and Constitution.
What are the reasons for having the highest standards? What are the lessons that lead to them? All forgotten for expediency in a crisis let not go to waste, which invariably leads to the “unanticipated” “unexpected” unintended consequences.
RegulatorCountry: Recall the enthusiasm with which the creation of DHS was greeted by Republicans, because it was incepted under a Republican. (One of many alphabet agencies they’ve given us.)
Constitution 123: Just like the founders avoided making slavery a big issue prior and during the adoption of the constitution, for the good of our country we must follow their example and do the same with the eligibility issue.
I’m not so sure that I would have done either today, knowing what I know now. Regarding the slavery compromise, has any one issue been a greater source for dissention and division than slavery?
Sorta violates the bill of rights right off the bat. No wonder we’ve had to suffer our civil wars, hot and cold, on our way to living here in an ever growing police state.
Weakening your definitions and lowering your standards to fight for your principles is a worldly choice for those with claim to a higher path and we humans rationalize such things as we feel the need to, blissfully ignoring or ignorant of how it is being used against us.
Republicans of the formerly frugal, now big spending Republican party, the party of Nixon, together with the Constitution lovin’ TEA party, are now going to run a guy born in Canada to a Cuban father as a natural born American citizen?
I’m sure the demonrats won’t notice or use that against you, as you rationalize your exceptions to your principles in order to fight for your principles and the expediency of “Ted Cruz for President!” (I can’t help but notice that you sure have a lot riding on a cult of personality gambit.)
I admit to having a great fascination about this latest change in our greater lesson plan, once the shock wore off. If I wanted to write a doctoral thesis, there is enough here on this and other recent threads for several disciplines of study. Life in America now feels like a closed room, group psychology experiment and I’ve been curious to see who is running it on the earthly side.
The other side has gotten you to say obama being born in Kenya makes him a NBC and they haven’t given up anything to do it. By your admission, you’ve left people like LTC Terry Lakin, whose actions upheld his oath, to die in the field. What you lose with this admission will be difficult to get back, if not impossible. Fascinating, now that the shock has worn off and I didn't see it coming with some who post here.
For the record, mine is just an observation, not a judgment. Fate will take care of that part with the usual unanticipated, unexpected and unintended consequences.
In the spirit of the game, I choose “Black”.
“Can you cite any court causes where the court said that native born and natural born are different or that the meaning changed between the Founding era and today?”
“Kawakita v. United States, 1952”
A very interesting case, which supports John Jay letter’s concerns, IMO, although the court did not rule on Kawakita’s NBC v. native citizen status. Certainly if Kawakita had been a Vattel NBC (two citizen parents on US soil) he would not have found himself in his WWII predicament where Japan could demand that he fight against the US.
If Kawakita were to have successfully hidden his wartime activities in Japan, he would have been qualified to be POTUS as an NBC after the war, in the estimation of the current US congress and courts, it seems.
http://en.wikipedia.org/wiki/Kawakita_v._United_States
“Decision
“On September 2, 1948, a jury of 9 men and 3 women found that Kawakita owed allegiance to the United States during his residence in Japan. Charged with 15 overt acts, he was found guilty of eight. His U.S. citizenship was revoked, and he was sentenced to death.
“Kawakita appealed the decision to the United States Supreme Court, which heard it in April 1952. On June 2, 1952, the Supreme Court ruled to support the lower court’s judgment and confirmed Kawakita’s death sentence.
“However, President Dwight D. Eisenhower viewed the punishment as excessive and on October 29, 1953 commuted Kawakita’s sentence to life imprisonment. Ten years later, during the closing of Alcatraz prison where Kawakita was serving his time, President John F. Kennedy pardoned him on October 24, 1963 on the condition that he be deported to Japan and banned from American soil for life.”
Interesting case — so much for the innocuous nature of dual citizenship.
“..Still, her mind was very sharp and her novels have come very close to accurately predicting the world in which we are living.”
True.
To be honest I don't have that many links that I suspect you've haven't already seen. The key is Armstrong's letter to Madison from September, 1807.
He begins by discussing problems with the various American consuls,
"A fifth, but of a description altogether different, is Aron Vail of L’Orient. I will say nothing of this man’s bankruptcy both of fortune & character (which have been long known) but of an Act of recent date which ought alone to remove him."
And then details the problems of Mr. Vail:
"There is now at Madrid a naturalized American, with respect to whom and his business, it becomes my duty to put you on the alert. This Man’s name is McClure. He is at once the Cap. of an American registered Ship and a proprietor in East Florida, characters not very reconcileable. Professing to have much intimacy with the Prince of Peace and a great variety of means to accomplish his objects with that Minister, he organized (as I am credibly informed) while here, a society for the purpose of out-bidding the U. S. in the purchase of the Floridas. The extent to which they proposed to go was eleven millions of dollars, ten of which were to be given to Spain and one to the Prince of P___e as a doceur. The subscription was left here to be filled, while he proceeded to Madrid & prepared things and persons for it’s arrival. This information was given by A. Vail, a consul of the U. S. for the port of L’Orient, to a person of respectability whom he invited to join in the Speculation & who communicated it to me. Vail is the Agent of McClure in prosecuting a prize cause here.You will best know, what use can be made of this discovery at Madrid."
He adds an addendum from October 1st,
"I have received an answer to my letter of the 31st. of August from Mr. Erving, by which it appears, that the speculating land Company of which Vail is a member & McClure an Agent, is made up of Liverpool merchants. The Paris branch, consists only of American Renegades. One of their objects was to establish in the Floridas a great depot of Slaves, to be smuggled into our Southern & western country."
http://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-02-01-02-2105
So McClure and Vale were in a land speculating deal in East Florida. This would have been a very big deal in 1810 when the US had annexed West Florida and was concerned about the British and French intentions in East Florida.
It explains why in the newspaper article about McClure, it was reported that he was turned in to the French by Armstrong. It would also explain why Armstrong denied McClure's request for help. In the 1807 letter Armstrong calls McClure a "naturalized American" so Armstrong knew what the law was and knew the McClure was a citizen. He clearly ignored that evidence in order to keep McClure in French hands.
Then there is the May, 1810 letter from Armstrong to Madison in which he professes his innocence in being part of a Florida land speculation scheme. "I have just been informed that M. Bowdoin (before he left Paris) in conjunction with M. Skipwith & by means which I shall take care to investigate, did obtain from an Irish ex-priest of the name of Somers a deposition, in which an attempt is made to implicate me in a land Speculation, connected with the then intended purchase of the Floridas, and conducted by Mess. Parker, OMealy and le Ray de Chaumont."
The M. Skipwith mentioned is Fulwar Skipwith who moved to West Florida in 1809 and became the President of the short lived Republic of West Florida. A lot of coincidences involving Florida.
This wasn't the only time that Armstrong had been accused of questionable activity. His aid David Bailie Warden wrote to Madison in 1811 to profess his innocence in a scheme to smuggle silk into the U.S.
http://founders.archives.gov/documents/Madison/03-03-02-0235
It seems that there were a number of people try to make a buck on Florida.
BTW, there was a Congressional report that the widow of Aaron Vale petitioned Congress to receive compensation for the properties in Florida that they lost at the time of the treaty of 1819 with Spain.
As to McClure, I doubt he was traveling on a forged passport as he would have had been entitled to a passport.
And I suspect that his imprisonment may have been more Armstrong's idea than Madison's. An attempt to eliminate the competition. Maybe you have additional information about this.
At any rate it muddies up the entire conversation about acquiring citizenship.
I think you may be underestimating how badly Thomas Jefferson wanted Florida. While researching this I came across countless written examples of Jefferson DESPERATE to get his hands on Florida. Florida was a Big F***'n Deal (to use the words of Joe Biden.)
Getting Florida was a big part of what the American Delegation to France was specifically tasked with. Though it was "officially" owned by Spain, everyone knew that the Spanish government would do whatever Napoleon said. He was the real owner of Florida.
Getting Florida was considered one of the most important aspects of their mission. Jefferson BADLY wanted Florida, and I have no doubt his urgency transferred to the subsequent Madison Administration.
It explains why in the newspaper article about McClure, it was reported that he was turned in to the French by Armstrong. It would also explain why Armstrong denied McClure's request for help.
Yes it does. It explains quite clearly why Madison might WANT McClure to remain indisposed. Of COURSE they weren't going to help him. He was trying to queer their deal.
In the 1807 letter Armstrong calls McClure a "naturalized American" so Armstrong knew what the law was and knew the McClure was a citizen.
I will point out that this is quite distinct from a "natural born" American, and serves as tacit evidence that people who know exactly what the term means, did not regard birth in the United States as sufficient to convey it.
In ordinary circumstances McClure would have been accepted without question, but because McClure was a danger to US Interests, they insisted on an absolutely technical point; That he is not a citizen unless South Carolina had a law which naturalized children born prior to the father's naturalization. When you are an official who wants to impede someone, you throw legal technicalities at them. That is the case here.
He clearly ignored that evidence in order to keep McClure in French hands.
He milked it for all it was worth. He had a technically correct legal argument. That the child was not an American unless he be regarded as the citizen of a state and naturalized under some state law. Many states had such laws and Armstrong was pleading ignorance of such a law being in effect in South Carolina.
Yes, it was underhanded and dirty but legally defensible.
The point remains. "Naturalized" is not "Natural Born." As it is conceded by all parties that McClure was BORN in the United States, it is obvious that PLACE is not the characteristic by which a "natural born citizen" acquires his status.
Madison tacitly agreed by allowing McClure to remain in custody. (where he wanted him anyway.)
This wasn't the only time that Armstrong had been accused of questionable activity. His aid David Bailie Warden wrote to Madison in 1811 to profess his innocence in a scheme to smuggle silk into the U.S.
Yup. I have that saved somewhere in my forest of links. Armstrong did not get along very well with the Diplomatic staff. They were constantly quarreling and impugning each others character. Armstrong was an @$$ and very likely an unethical one at that.
And I suspect that his imprisonment may have been more Armstrong's idea than Madison's. An attempt to eliminate the competition. Maybe you have additional information about this.
Yes, but Madison went along with it, and thereby it acquires official sanction from the Father of the Constitution. I have little doubt that McClure was apprehended under a pretext of not having American citizenship for the sole purpose of scuttling his attempts to interfere with the US efforts to acquire Florida. Likewise I think they regarded him as a British Agent, not withstanding the fact that he was born in the United States. He certainly BEHAVED like a British agent.
I have to thank you for finding some of that documentation. Previously I only had excerpts of that letter from Armstrong to Madison, (referred to in a 1959 essay on Armstrong) and no combination of words of which I could conceive was able to pry the whole thing out of the internet.
I KNEW that Armstrong must have informed Madison about McClure's skulduggery, and I knew that Madison must have been alarmed by it. McClure was threatening a very dear prize and I can't see Jefferson or Madison tolerating it.
Once more, it tends to support the notion that "Publius" was very likely Madison or one of his Agents, and regardless, represented the position that Madison wished expressed on the matter.
Like I said, this is a very fascinating story. History would have been dramatically affected had things worked out in McClure's favor.
From a footnote to letter from Jefferson to Rodman.
"John Rodman (1775–1847) was a merchant in New York City by 1801. He spent three years in France before returning to New York City by 1812 to practice law. Rodman served as a major of artillery during the war of 1812 and in 1814 published a translation of the commercial code of France. He was appointed the state’s district attorney for the city and county of New York in 1815 and served until 1817, when he resigned and spent another year in France. In 1821 James Monroe appointed Rodman customs collector for the port of Saint Augustine, Florida, and he held this position until 1842. In Florida, Rodman continued to practice law and also served as an alderman for Saint Augustine and a prosecuting attorney for Saint Johns County."
http://founders.archives.gov/documents/Jefferson/03-04-02-0552
Rodman was also well acquainted with David Bailie Warden (Armstrong's secretary)
"Warden’s friend, John Rodman, wrote from New York: “I have read your book on Consular establishments … it is really a very valuable treatise and does you great credit …”." Rodman to Warden, 28 October 1814. Reel 2, Warden Paper, MdHS in David Bailie Warden and the Development of Consular Law.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1661020
I hope you know, Jim, that Cato came out for fake marriage.
Credibility issues?
Agree with you 100%. We can’t pick the parts we like and discard the rest. Cruz is also a dual citizen of Canada and Cuba by birth. I don’t think this is what the framers had in mind AT ALL. I like Cruz but he’s not eligible.
| The Constitutional Requirements:
|
|||
| Office | Citizenship | Age | Residency (or years citizen) |
| Commander in Chief | natural born Citizen | 35 | 14 years resident |
| Senator | Citizen | 30 | 9 years a Citizen |
| Represantative | Citizen | 25 | 7 years a Citizen |
Sen. Ted Cruz - A native of Canada.
Born in a foreign country. [1]
Born with foreign citizenship. [2]
Born owing allegiance to that foreign country. [3][4]
Born a U.S. citizen due exclusively to his mother meeting the specific requirements in the congressional law in existence at the time of his birth. [5]
Foreign born Sen. Ted Cruz is a U.S. "citizen" by congressional statute.
Congress does not have the Constitutional authority to make laws determining who may be a "natural born Citizen."
Cruz is doing amazing work in the Senante, but he's no "natural born Citizen."
I'll stick with the likes of Rep. John Bingham and his definition of a "natural born Citizen" that was never contested in the House during the mid to late 1800's, over that of an opinion by Ilya Shapiro at the CATO institute.
Ted Cruz was born to a fully qualified American citizen working temporarily in Canada and is a natural born citizen and American patriot in every sense of the word. If he runs and he’s the strongest conservative running, I will support him 100%!! And I’m sure the majority of the grassroots tea party conservatives will too. Best get used to it. If the birthers go against Cruz, they will be allied with the GOP-e RINOs and the democrats against the grassroots. Good luck with that.
We don’t cotton to Tokyo Rove or the demoncrats around here.
Run, Ted, Run!!
For Senator and Representative you use the term “Citizen”. The Constitution uses the “Citizen of the United States”.
This is the general class that consists of both natural born and naturalized citizens.
Senator Cruz did not have to be naturalized.
The Republic is lost to ideology. So much for that experiment.
Good thing I live in Texas.
If Barack Hussein can be president so can Ted Cruz or so can Vladimir Putin, for that matter, or anyone else in the world.
The problem with Cruz is that his candidacy would only be about his eligibìty. MSM and the Democrats would not allow any other subject to be aired. He cannot win because most voters will think it is the only issue there is for him.
In the new definition of “natural born” extant since the advent of the kenyan, yes, he is eligible.
Then if he runs and gets the nomination, we’d best pull out all the stops and turn out the vote like never before!
Run, Ted, Run!!
The thing is the voting majority is cowardly and stupid. Ted tells it like it is, so the voting majority gets scared and they can't comprehend a “fix” that will induce misery across the board. Bottom line, Ted or Rand produces to much stark reality and truth for the voting majority to handle.
We as a nation are in for a long line of weak and pathetic leaders like Obama. He is a reflection of the majority
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