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.”
We have had one president who was probably not "natural born" and we have one who may well not be any sort of citizen at all.
Those fellows you mention prove that "natural born" does not guarantee good character or patriotism, but the issue is the Constitution and whether or not we can support one thing for Democrats and another for non Democrats. If the Constitution is breachable "for a good cause" then there is no Constitution, only a set of mutable by-laws.
You must have me confused with someone else. That was the first time I have ever referenced Rawle.
I use "your" in the plural sense regarding those of you who argue the position you have taken.
And I concur. Normally you are somewhere up in the 21st century instead of back in the 18th where this topic belongs. This *IS* the first time I recall you trying to justify your position based on someone who was nearly a contemporaneous source.
Were I them, I would do the same. It further obfuscates the ineligibility of their own candidate and moves the ball into the enemy's court. If Cruz is decided eligible by the courts, they win, (especially if voters decide otherwise) and if he is disqualified as a candidate they still win, because much time and energy will have been wasted by their enemies.
There is NO LOSE to Obots supporting him.
The Constitution was not written in light of today's laws. It is erroneous to apply subsequent law to Constitutional intent. No subsequent law can alter constitutional meaning.
It is a divide by zero error.
And this argument is intended to imply that the Eligibility clause is not foolproof.
Tell me, does not being foolproof give us leave to ignore our laws? Funny notion that, coming from a man who lives for arguments of legal process.
Yes, tried and true Monarchical law is obviously superior to that new-fangled Republican stuff. Obviously that's what the founders were going for.
Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code. The "revisal of the laws" by a Committe[e] of wch. Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law.
Todays Congress created immigration and naturalization laws on who may be a “citizen” don’t apply to the 1790 Act you cited.
You may find this interesting.
To James Madison from Charles Pinckney, 12 October 1808Dear Sir
I Will Thank you to read the inclosed & send instructions to General Armstrong respecting Young Mr. Maclure. His Father you see was a Citizen since 1786 & himself born here. They are respectable merchants & I will be much obliged to you to do what they request. We have had a very hard struggle here to carry our members & secure to You the vote of this state, but the thing is done & I beg you to read what the President will shew You on this subject. I intend when the hurry & Bustle we are in is over to write to you particularly on this subject & shew you the inveteracy of the federalists against You but You had firm confidential friends who went every length for you, & in spite of every private or interested consideration. I have never known such a struggle & hear 200 Votes in the City were given more than ever was taken before. I shall write You much more fully soon & remain dear Sir With regard & affection Yours Truly
Charles Pinckney
The current law of the land defining who is a Citizen of the United States At Birth may not matter to you but it has mattered to the judges who have ruled on this issue since 2008.
PALIN/CRUZ 2016!
Because like expatriation there was not unanimity of thought on citizenship. That’s why you can find different people saying things that are contradictory (Judge Roberts and William Rawle or James Madison and James Jackson).
As you know McClure was given a passport by the American Minister in London that declared him to be a native American. You say it might have been a forgery, but why would he need a forged passport when he could get one under two different theories. Mr. John Rodman for example believed him to being a citizen based on his place of birth. And we know that when Secretary of State Monroe wrote a letter on McClure’s behave he never mentions the father and only says he was born after the Revolution in South Carolina.
To James Madison from Valentin de Foronda, 2 December 1808 Muy Señor mio: Philada. 2. de Diciembre de 1808.Tengo la honra de rêmitír á V.S. el memoríal adjunto de un Español, persuadído á que es Justa su demanda.
V.S. notará que funda su pretensíon sobr él tratado concluído entre las dos Nacíones, y que la palabra ní detencíon, es muy notable. Los caudales que tiene detenidos aquí por el embargo messarece que tiene derecho á sacarlos; y como no los puede sacar, sino ìmítando à los Amerícanos que han ido à las Colonias Españolas, que han extraido frutos, usando de la misma lícencia, parece que podría sacarlos tambien en frutos; pero se contenta con sacarlos dexando aquì el dínero, por dos barcos; evitando por este medío que se púdran en los Ríos, y fomentando la construccion, que es tan beneficiosa a estos Estados.
Es de observar, que los Españoles podrian àproximarse á estos Puertos, con el obgeto de sus negocíacíones; y que los Amerícanos no podían acercarse sin pasaportes, ó vìveres à los nros., y qe. con todo han sído tan generosos nros. Gobernadores, que no los han decomísado hasta ahora, segun las Leyes, y que segun ellas deberìan haberlo hecho. Sí Cavallero Madison, los Españoles son generosos con este Pays, al mismo tiempo qe. se trata de hambrearlos, como lo prueba el nó haberle decomísado èl; ínnumero de Barcos, que ha ído despues del embargo, solo à la Ysla de Cu[ba] y que no lo han hecho; y como lo prueba su conducta en el Río de Sta. María, quando no se les permitia pasarlo, para llevarse una líbra de pan, pues env[ia]ban socorros de dínero, proporcíonados à su pob[re]za, para el alívío de sus Vecinos los Amerícanos, en la fíebre que los perseguia. Lease Poulson, [no]víembre 9. en que copía una carta de Sta. Mar[ía] que díce así: "It would be the hìghest íngratitud[e] to pass unnotíced the magnanimous, human[e] & generous conduct of our neíghbors in Florida. On hearing of our dístress, twelve gentlmen, then at the house of Mr. M’Clure on Amal[ia] Ysland, subscribed the sum of one hundred [and] ninetyone Dollars, & immediately sent the [] ínclosed ín á Letter, of which á copy is subjoíne[d.] Contrast thís act of humanity with that of ou[r] own Citizens, who have been looking on & seein[g] our poor suffer, & to the great disgrace of ou[r] country, have been for these eight months past, using every means to starve these neig[h]bors, by descending to extreme líttleness in pr[e]venting even a loaf of bread, or a pound of fre[sh] beef to cross the river St. Marys." Me ofrezco, con todos los respetos debidos, a la obedíencia de V.S. y pido á Dios guê. su vida ms. as. B. L. M de VS su mas atento servidor
Valentin de Foronda
(1.) Para corroboracion de mi asertn, enviò el pedazo de Gazeta adjunto, en que Mr. Mumford, del Congreso, habla de la Generosidad Española.
Amelia Island appears to be on the North East end of Florida, a relatively short distance from South Carolina. Could this be the same McClure which Armstrong asserted had the Character of East Florida? How many McClures would have been running around in Florida about this time?
...He is at once the Cap. of an American registered Ship and a proprietor in East Florida, characters not very reconcileable.
Interesting.
One would think this would be blatantly obvious to anyone, but legal minds are trained to think in a precedent rut.
Yes, we are led by the ignorant and willfully blind. Do you have a point beyond that?
PALIN/CRUZ 2016!
I'm happy if it is "CRUZ/PALIN 2016" as well. At the moment they are the only people in which I have any trust at all.
Barack Hussein Obama, II was elected President of the United States, twice. His electoral votes were certified unanimously by every member of Congress, twice.
There are no “millimeters,” they won, twice.
There have been 207 lawsuits filed challenging Barack Obama’s eligibility. Additionally there have been 91 state and federal appeals and 19 petitions to the Supreme Court of the United States. That’s 317 civil actions concerning natural born citizen status.
Not one single judge, conservative, moderate or liberal has ever ruled that Obama isn’t eligible. The more conservative the judge, the less likely they are to intervene in the electoral process and the more likely they are to let the voters decide. That is particularly true when the candidates who also received electoral votes: McCain, Palin, Romney and Ryan, who had standing to challenge the outcomes, did not file suit or support any citizen/voter-initiated lawsuits, nor did other political parties.
Also, every state’s Chief Elections Officer (usually the Secretary of State) cleared Obama for the ballot as eligible.
There will be many fewer challenges for Senator Cruz, because of the rulings concerning Obama, but the outcome will be exactly the same.
PALIN/CRUZ 2016!
“Interesting case — so much for the innocuous nature of dual citizenship.”
Context is important. My post was in response to a generalization that dual-citizenship leads to treason (see the quote above) and yet more treason has been committed by natural born citizens than by dual citizens.
Of all the names you've mentioned, only one was a Delegate and Knew of which he spoke. James Jackson appears to have been a congressman post Convention, and I can't say i've heard his name mentioned before.
Do you have a quote from James Jackson which supports your argument?
As for Madison, we have already established that He was okay with leaving James McClure twisting in the wind as a British Prisoner of War. That note (posted above) by Charles Pinckney leaves no doubt that Madison was very much aware of James McClure.
As you know McClure was given a passport by the American Minister in London that declared him to be a native American. You say it might have been a forgery, but why would he need a forged passport when he could get one under two different theories.
You misunderstand my meaning. At this time in history, the American Consulate to France was being inundated with Forged documents attesting to American citizenship and American registry of Vessels, etc. I have no doubt that James McClure's documents were legitimate when they were presented to John Armstrong. My point is, John Armstrong couldn't tell legitimate documents from fake ones, and was therefore naturally suspicious of any documents presented to him.
But that's attempting to color John Armstrong's actions in the most benevolent light. I personally think that John Armstrong regarded McClure as a British Agent, even if he accepted McClure's documents as legitimate. In any case, he was regarded as a serious threat to one of Armstrongs most urgent orders; Getting Florida.
You say it might have been a forgery, but why would he need a forged passport when he could get one under two different theories.
Again, the "John Armstrong is suspicious of forgery" argument was presenting John Armstrong's actions in the most benign light possible. In actuality, I don't think Armstrong cared whether the documents were legitimate or not, I believe John Armstrong regarded McClure as a threat to one of Armstrong's most important mission requirements.
I think Armstrong regarded McClure as a person who may have been technically American, but who had thrown his lot in with the British.
But the point remains, Armstrong immediately labeled him as a "naturalized" American, and this can only mean that Armstrong accepted McClure's documents at face value. Had McClure's proof of birth occurred AFTER his father's naturalization, Armstrong would have had no choice but to refer to McClure as a "native, or Natural born" American. It is telling that he drew the distinction.
Mr. John Rodman for example believed him to being a citizen based on his place of birth.
That is not a fact in evidence. At least not in any evidence I currently possess. I've been trying to find the John Rodman letter to the Gazette, but unsuccessfully so far. All we can safely say is that John Rodman regarded him as an American Citizen and agreed to help him get free of the French. I will further point out that John Rodman was not a constitutional Delegate, and John Armstrong Was. Of the two of them, John Armstrong has the better claim to being an accurate authority on the subject.
And we know that when Secretary of State Monroe wrote a letter on McClure’s behave he never mentions the father and only says he was born after the Revolution in South Carolina.
He says that James McClure is a citizen AFTER a Supreme Court Justice and a Congressman presented him with documentation which establishes his citizenship. Drawing inferences from what he doesn't mention is just speculation. Obviously the term Documents, implies more than one document.
Again, if proof of birth in South Carolina was all that was necessary, James McClure would never have been held captive.
I would very much like to find that letter Armstrong wrote to McClure on March 16, 1810. I wonder if it exists anywhere?
Misguided didactics will not elect Cruz and cannot overcome the eligibility problem, which is not ineligibility per se but the blanketing firestorm that it will engender that snuffs all other qualities and points.
The often quoted Madison statement from the William Smith trial, the one where he said in the US the most certain criteria for allegiance was place of birth also contains his additional thoughts:
"I conceive the colonies remained as a political society, detached from their former connexion with another society, without dissolving into a state of nature, but capable of substituting a new form of Government in the place of the old one, which they had, for special considerations, abolished. Suppose the State of South Carolina should think proper to the subject, revise her constitution, abolish that which now exists, and establish another form of Government: surely this would not dissolve the social compact. It would not throw them back into a state of nature. It would not dissolve the union between the individual members of that society. It would leave them in perfect society, changing only the mode of action, which they are always at liberty to arrange. Mr. Smith being, then, at the declaration of independence, a minor, but being a member of that particular society, he became, in my opinion, bound by the decision of the society, with respect to the question of independence and change of Government; and if afterwards he had taken part with the enemies of his country, he would have been guilty of treason against that Government to which he owed allegiance, and would have been liable to be prosecuted as a traitor."
"If it be said that very inconvenient circumstances would result from this principle, that it would constitute all those persons who are natives of America, but who took part against the revolution, citizens of the United States, I would beg leave to observe that we are deciding a question of right, unmixed with the question of expediency, and must, therefore, pay a proper attention to this principle. But I think it can hardly be expected by gentlemen that the principle will operate dangerously. Those who left their country to take part with Britain, were of two descriptions— minors or persons of mature age. With respect to the latter, nothing can be inferred, with respect to them, from the decision of the present case; because they had the power of making an option between the contending parties; whether this was a matter of right or not, is a question which need not be agitated in order to settle the case before us. Then, with respect to those natives who were minors at the revolution, and whose case is analogous to Mr. Smith's, if we are bound by the precedent of such a decision as we are about to make, and it is declared that they owe a primary allegiance to this country, I still think we are not likely to be inundated with such characters; so far as any of them took part against us, they violated their allegiance, and opposed our laws ; so, then, there can be only a few characters, such as were minors at the revolution, and who have never violated their allegiance by a foreign connexion, who can be affected by the decision of the present question. The number, I admit, is large, who might be acknowledged citizens on my principles: but there will very few be found daring enough to face the laws of the country they have violated, and against which they have committed high treason."
When he was finished Congressman Jackson spoke against Madison's ideas:
"I differ widely from the gentleman from Virginia on the subject of allegiance and the social compact, and hold the principles advanced by him exceedingly dangerous to many of the States, and, in particular, to the one I have the honor to represent. The situation of America, at the time of the revolution, was not properly to be compared to a people altering their mode or form of Government. Nor were there two allegiances due, one to the community here, another to that of Great Britain. We were all on a footing; and I contend the principle is right, in some degree, of a total reversion to a state of nature amongst individuals, and to a mere parental or patriarchal authority, where the heads had families dependent on them; the former, or individual, pursued that line which appeared right in his own eyes, and the cause which he thought just; and, in the latter case, the children follow the will of the father, who chose for them, as the person who brought them into life and whose fortunes they were to inherit."
Ramsay v. Smith Trial in Congress
Of course in the end Congress agreed with Madison.
DL: "I have no doubt that James McClure's documents were legitimate when they were presented to John Armstrong."
His documents got him a passport from the London Minster. So you have two different ministers - one in London , one in Paris saying two different things.
We know from the September, 1807 Armstrong letter that McClure was in Madrid and Armstrong was suspicious of his and Aaron Vale's actions.
Was he looking for any excuse to have him arrested?
DL: "I personally think that John Armstrong regarded McClure as a British Agent, even if he accepted McClure's documents as legitimate."
I don't see that as much as Armstrong saw him as a land speculator work for himself and Vale."
DL: "That is not a fact in evidence."
According to Publius - "Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States . He is mistaken. The law of the United States recognizes no such claim."
DL: "Again, if proof of birth in South Carolina was all that was necessary, James McClure would never have been held captive."
Unless of course, Armstrong and Madison were looking for a way to keep McClure out of the Florida picture.
DL: "I would very much like to find that letter Armstrong wrote to McClure on March 16, 1810. I wonder if it exists anywhere?"
And the affidavits sent with the Monroe letter to Joel Barlow.
I think I will just wait and see what happens. No one knows yet if Senator Cruz is even interested in running. I’m just fantasizing about my personal dream ticket.
I like winning elections the old fashioned way: have better ideas, raise more money, get more people out to vote and stomp your opponents into the dust with the force of your popular support.
In my humble opinion, winning on legal (even constitutional) technicalities is for pussies.
PALIN/CRUZ 2016!
The Constitution, and it’s QUITE PLAIN MEANING in Article II, is clearly dead. I’m very, VERY sorry about that.
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