CATO Institute: Yes, Ted Cruz Can be President

CATO Institute ^ | Aug 26, 2013 | By Ilya Shapiro, Senior Fellow In Constitutional Studies, Cato

[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.”

[DiogenesLamp]

I was hoping for an answer from you as to why James McClure felt the need to carry around his father's naturalization papers.

If the General and accepted rule was Jus Soli, what possible use could his father's naturalization papers serve?

[wku man]

Amen, bro.

Scouts Out! Cavalry Ho!

[4Zoltan]

How do you know he carried them around?

The Horizon ran aground in May, 1807.

In September 1807, Armstrong writes about McClure being in league with Vale. And working on a case of a shipwrecked ship (”Vail is the Agent of McClure in prosecuting a prize cause here.”)

In November, 1807 the resolution of the case of the Horizon was discussed by Armstrong to Madison.

http://books.google.com/books?id=7WVIAAAAYAAJ&pg=PA7&dq=horizon+shipwreck+armstrong&hl=en&sa=X&ei=opA7Up_jE8nRiAKS6oHoDQ&ved=0CC8Q6AEwAA#v=onepage&q=horizon%20shipwreck%20armstrong&f=false

Fast forward to March, 1810.

“On the 16th March, 1810 he writes him that the certificates of his father’s naturalization, and of his own birth and baptism, were not sufficient; they only prove that his father is an American Citizen, and that he himself was born in the US, and that “the evidence that will reach the case & substantiate (his) claim, is a certified copy of the act of S.Carolina, ‘naturalizing’ (his) father, provided that the “act naturalizes also the children of (his) “father born before his own date:”

In April, 1810 the French arrest McClure based on what Armstrong told them.

That’s a 2.5 year time gap.

When did the disagreement with Armstrong over his citizenship start?

Did McClure have time to arraign for his documents to be sent to him?

Why did Armstrong have no problem with McClure being an American in 1807 but in 1810 he was questioning it?

It seems to me they wanted McClure out of the way and would have made up any excuse to have him arrested.

Would they )Armstrong and Madison) ignore US law just to get McClure under wraps?

[Kansas58]

Why are you so sure of your opinion when not one legal mind in the entire country, of any real weight, agrees with you?

[Kansas58]

Yes it is.
Natural Born Citizen is the opposite of Naturalized Citizen.

It is very simple.
Cruz is eligible to be President.

Those who disagree have absolutely no authority on their side.

[Kansas58]

Generals win wars by first understanding that some must die.

If you care about winning on the prolife issue, you will swallow your pride and ego and realize one important point:

HURT THE ABORTIONISTS!

Any law that hurts abortionists is a prolife law, period!

Abortion providers give millions of dollars to liberal campaigns every year. We save babies by cutting off the abortion money.

Your pious, even ignorant position is held by a very slim minority of the prolife camp.

[Kansas58]

Frankly, ANY President, if he or she “got in trouble” could probably go to just about any country to “escape” -—

Your hypothetical is absurd.

[Kansas58]

You are prideful and foolish if you insist on your narrow opinion in the face of sound, solid, wise counsel to the contrary.
Cruz is a Natural Born Citizen.
Only crackpots disagree.

[DiogenesLamp]

How do you know he carried them around?

On the 16th March, 1810 he writes him that the certificates of his father’s naturalization, and of his own birth and baptism, were not sufficient;"

Did McClure have time to arraign for his documents to be sent to him?

Okay, so you are suggesting that he didn't carry them around, but instead sent for them some time prior to 1810? It still begs the question.

Why would he send for them? Jus Soli, remember?

It makes no sense to send for a document proving Jus Sanguinus when the operating law is Jus Soli. That he did so indicates the operative law was not Jus Soli.

Why did Armstrong have no problem with McClure being an American in 1807 but in 1810 he was questioning it?

I think we have already established that Armstrong really wanted him out of commission. When a bureaucracy is out to get you, they focus on technicalities. When McClure wasn't being a problem for Armstrong, his citizenship technicality was of no consequence. When he became a problem, Armstrong saw an opportunity to take advantage of the naturalization technicality to put McClure out of commission, and did so.

It seems to me they wanted McClure out of the way and would have made up any excuse to have him arrested.

I don't think Armstrong would have gone so far as to make stuff up just to get him arrested, and I don't think Madison would have countenanced it either. I think Armstrong simply exploited an opportunity which presented itself in the form of a citizenship technicality.

I don't think it would have worked, or even been attempted were the law not what Armstrong said it was. If the Jus Soli rule was the only one to apply, not even the French would be dumb enough to accept a contrary argument. No one would have accepted it, least of all Madison back in Washington.

The Bottom line appears to be that Jus Soli was not regarded as the standard for possessing FEDERAL citizenship, unless it was bequeathed under the umbrella of State citizenship. (As it was in Virginia, but not South Carolina.)

.

By the way, on a separate aspect of this topic, I have recently discovered that the two men who delivered the papers and affidavits to James Monroe declaring McClure to be a "citizen" had further things to say on the topic.

Landgon Cheves and William Johnson both expressed opinions on the topic of citizenship later in their lives, and their quotes do not support a Jus Soli interpretation of natural citizenship.

Continued in next message.

[Kansas58]

Take up knitting or bird watching then.
You are not very good at law, history, or politics.
Cruz is a Natural Born Citizen.
Prideful, ignorant opinions to the contrary carry no weight.

[DiogenesLamp]

Speaker of the House of Representatives, Langdon Cheves, February 1814:

Perpetual allegiance, said he, is alleged to be founded on natural law, the positive law of nations, or the municipal law of each state. We wil examine each; and the first the law of nature. In this view we are able to discover but two principles or pretences on which the duty of perpetual allegiance is affirmed, or the right of expatriation denied. --These are, the necessities of the state and the gratitude of the subject. These are the only grounds stated by Vattel, to whom alone I shall refer as my authority for positions of natural and national law, because I can refer to no better authority, the more especially as on the points for which I shall use him, I believe he agrees with all other writers.

"The children have a natural attachment to the society in which they are born: being obliged to acknowledge the protection it has granted to their fathers, they are obliged to it in a great measure for their birth and education. … We have just observed that they have a right to enter into the society of which their fathers were members. But every man born free, the son of a citizen, arrived at years of discretion, may examine whether it be convenient for him to join in the society for which he was destined by his birth."

I could be mistaken, but I believe that, is a very powerful endorsement of the Vattel principle of natural citizenship by someone in a very high position of office in the United States Government during a time when the correct meaning of the term would have been well known in such circles.

[Kansas58]

A “reasonable man” does not discount the wise counsel of authority.
EVERY wise and reasonable man and woman in the country is against you.
Cruz is a Natural Born Citizen.

[DiogenesLamp]

Justice William Johnson.
(Shanks v Dupont, 1830)

In the year 1782, when this descent was cast, it was the law of the land; and it becomes imperative upon these appellants, after admitting that their parent was a native born citizen of South Carolina, daughter of a native born citizen of South Carolina, to show on what ground they can escape from the operation of these leading maxims of common law. Nemo potest exuere patriam;-and proles sequitur sortem paternam.

"proles sequitur sortem paternam" means “the offspring follows the condition of the father.”

If the moral government of our maker and our parents is to be deduced from gratuitous benefits bestowed on us, why may not the government that has shielded our infancy claim from us a debt of gratitude to be repaid after manhood? In the course of nature, man has need of protection and improvement long before he is able to reciprocate these benefits. These are purchased by the submission and services of our parents; why then should not those to whom we must be indebted for advantages so indispensable to the development of our powers, be permitted, to a certain extent, to bind us apprentice to the community from which they have been and are to be procured?

[DiogenesLamp]

And I just noticed this from Justice Joseph Story.

Justice Joseph Story.

(Shanks v Dupont)

If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country.

[Vendome]

Really?

Because you decree it, anyone who disagrees with your position has no authority?

By what right or benefit do you derive your authority.

[Kansas58]

I commented on your complete LACK of authority.
So far, not a single member of Congress agrees with you.
Not as single Judge in the Country agrees with you.
Not a single immigration attorney agrees with you.
Not a single Conservative leader agrees with you.

My authority is that YOU lack any authority at all.

[EternalVigilance]

We save babies by cutting off the abortion money.

Give me a break. The biggest funders of Planned Parenthood in the country right now are the very Republican congressional leaders who hold to your position.

[Kansas58]

You have ZERO political accomplishments.
You have ZERO prolife accomplishments.
You have ZERO legislative accomplishments.
Nobody will listen to your advice, since you have no clue how to make any positive gains on this issue.

[Vendome]

Since you only show up with your loud turrets like proclamations as a tourist, everything you spout isn’t to be taken with so much as a grain of salt.

You only hit and run, with no debate and we won’t see you again for at least few weeks.

So, if you have been let out of the old peoples home now might be a good time to find your way back before you have another bout of “Sundowners”.

[Kansas58]

And, in case you can’t figure it out:

Making “some abortions” illegal reduces the money and funding to the abortion political lobby.

Saving “some of the babies” denies the abortionists the profits they would use to fund pro abortion political policy.