Posted on 03/12/2015 12:32:49 PM PDT by SoConPubbie
Two of the top lawyers for the Obama and Bush administrations agree on this: Sen. Ted Cruz can become president. Legally speaking, anyway.
Paul D. Clement, former solicitor general for President George W. Bush, and Neal Katyal, former acting solicitor general for President Obama, penned a piece for the Harvard Law Review tackling the question of what the Constitution means when it says that the president must be at least 35 years old, a U.S. resident for at least 14 years and a “natural born Citizen.”
“All the sources routinely used to interpret the Constitution confirm that the phrase ‘natural born Citizen’ has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time,” they wrote. “And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.”
Cruz was born in a Canadian hospital to a mother who was a U.S. citizen. But he’s only the latest potential presidential candidate who has had his qualifications questioned. Sen. John McCain (R-Ariz.) was born in the Panama Canal Zone. Former Sen. Barry Goldwater (R-Ariz.) was born in Arizona before it was a state. Gov. George Romney (R-Mich.) was delivered in Mexico to U.S. residents. All were qualified to serve, . . . .
The First Congress, they noted, established that children born abroad to U.S. citizens were themselves citizens at birth “and explicitly recognized that such children were ‘natural born citizens.’
(Excerpt) Read more at washingtonpost.com ...
You are trying to redefine the word “jurisdiction”. Nice try though. Does the US Govt have Jurisdiction over soldiers in battle in Afghanistan or Korea or Germany?
What is the naturalization numbers of children naturalized when their parents become citizens? They don't have any. They are regarded as "derivative naturalization."
They don't have to take tests, they don't have to swear oaths, and they don't get naturalization numbers. Their naturalization is "derived" from that of their parents.
No Numbers.
Therefore, the absence of a naturalization number is not proof that someone was not naturalized.
Don't side step the point. Call them tourists. While they are in this country, the courts regard them as under our "jurisdiction." If consistency is applied, then people who are in other countries are under those countries jurisdiction.
We can't have one rule that applies at home, and an opposite rule that applies abroad. "Jurisdiction" needs to mean the same thing in all cases.
I am not trying to redefine it. I am pointing out how the supreme court already expressed an opinion regarding what it means, and in a case that d@mn near everybody cited in support of Obama being an American.
I heard over and over again how "Wong Kim Ark" was the absolute last word in Knowledgeable authority on the issue of citizenship. If you believe this, then you need to argue against Wong Kim Ark, not me. I'm just repeating what they said.
They won't have to. Conservatives will do that for them.
I agree completely. I wish Cruz would drop the one-liners and get serious.
It has not. The Wong case mention this In Dicta. This is Professor Jacobson, a real lawyer
“In United States v. Wong Kim Ark, the issue was whether a child born in the United States to non-citizen parents from China was a citizen of the United States by virtue of the 14th Amendment. The Court held the child was a citizen, but in reaching that result engaged in some discussion of the history of citizenship and “natural born Citizen[ship]” which has sparked many theories (and a vigorous dissent). There are lengthy discussions of the concept of allegiance under British citizenship law, as well as French and European citizenship concepts. From these discussions, many have drawn all sorts of conclusions in every direction.
This paragraph, however, has led to claims that persons born abroad cannot be “natural born Citizen[s]” because birth abroad is “naturalization”:
The fourteenth amendment of the constitution, in the declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,’ contemplates two sources of citizenship, and two only,—birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.
It’s not clear that the Court was considering these topics in the context of the “natural born Citizen” clause, since that was not at issue in the case. Since “natural born Citizen[ship]” was not the issue in the case, and the Court did not even purport to rule on the issue as to whether someone is a “natural born Citizen,” at most there were expressions of opinion (dicta) that would not be legal precedent.”
If Congress is to adopt a uniform set of rules for naturalization then don't they have to first define who doesn't need to be naturalized, i.e. natural born citizens?
A quick review of the article you cite points up an inaccuracy in its claim regarding Alexander Hamilton.
“In any discussion of Hamilton’s formal suggestions for the proposed Constitution of the United States, it is important to keep in mind the distinction between the brief outline which he read in connection with his important speech of June 18 and the longer and more elaborate plan which, near the end of the sessions of the Convention, ‘was placed in Mr. Madison’s hands for preservation by Colonel Hamilton, who regarded it as a permanent evidence of his opinion on the subject.’”[1]
Alexander Hamilton – Attended the Convention on May 18; left June 29; was in New York after July 2; appears to have been in Philadelphia on July 13; attended Convention August 13; was in New York August 20–September 2.[2]
June 18 – Hamilton delivered his plan in a speech that “occupied in the delivery between five and six hours”[3] This is the speech that led to the famous charge that Hamilton advocated a monarchical system. This was denied, and it was replied, that “he proposed a system composed of three branches, an assembly, a senate, and a governor. That the assembly should be elected by the people for three years, and that the senate and governor should be likewise elected by the people during good behaviour.”[4] There are several versions copied down, all of which specify the Executive “to be a governor elected, during good behavior, by electors chosen by the people in the election districts” (with slight variations in wording).
Hamilton’s more detailed plan given to Madison at the close of the Convention, states in Article IX § 1, No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.[5]
This plan differs from that presented June 18.
According to a letter[6], Hamilton was chagrined when his plan (June 18) failed and he left the House in disgust (June 29), he returned however on a subsequent day (July 13?, August 13?) and delivered his sentiments in writing, then went to New York (August 20-September 2).
There is no record of any presentation by Hamilton on July 13 or August 13, although this does not rule out any written transmittal. If a written plan was delivered it may be lost.
Hamilton claimed the detailed plan given to Madison delineated the Constitution which he would have wished to be proposed by the Convention: He had stated the principles of it in the course of the deliberations.[7] It is true that he proposed a system composed of three branches, an assembly, a senate, and a governor. Although details vary it is the general structure of the government adopted. The detailed plan may have been political cover[8].
There is no way to know if any delegates knew of Hamilton’s “born a Citizen” idea. The record does not support any claim that they did.
Jill Pryor’s claim that Hamilton’s “born a citizen” “appears to be an early version of the natural-born citizen clause” reverses the timeline of events: Hamilton’s plan was given to Madison at the close of the Convention - after the Constitution was written.
_____
[1] See J. F. Jameson, Studies in the History of the Federal Convention of 1787, at 143
[2] See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 588. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003443%29%29
[3] See 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, note 9, at 293. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr00198%29%29
[4] See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 395. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003315%29%29
[5] See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 619, 629. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003449%29%29
[6] Anonymous Letter to Alexander Hamilton. New York Augt. 30th. 1793
A publication appeared some time since in Greenleaf’s paper, charging you with having moved in Convention that the Government of the United States should be by a King, Lords & Commons–I took some pains to discover the author of that piece, but without success — But a conversation lately happened between Comodore Nicholson & Mr. Leonard Bleeker, in the hearing of others, in which the Commodore said; he had read the piece before alluded to, but doubted the truth of it untill it was lately confirmed by Mr. Abraham Baldwin, who was also a member of the Convention–This Mr. Baldwin did publicly in a pretty large company at the Commodores own Table. He said your motion was seconded by Mr. Gover Morris & that you was so chagrined when it failed that you left the House in disgust; That you returned however on a subsequent day, delivered your sentiments in writing, & Came off to New york, declaring you intermeddle no farther in the matter — Notwithstanding you returned, & assented to the Constitution as it is — This writing he suggested contained your Ideas of the kind of Government proper to be adopted — In repeating from other persons, words are often changed; but the foregoing is the substance of what the Commodore reports Mr. Baldwin to have said — I leave to yourself the expediency of taking any notice of it.
See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, Appendix A, CCLXXI, at 369. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003294%29%29
ed: An investigation of Baldwin’s papers might provide some clues as to whether Hamilton did supply a written plan upon his return (July 13 or August 13), and if so what the contents of that plan were.
[7] See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 619. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003449%29%29
[8] Jared Sparks visit to James Madison, April 25th, 1830
recounts an anecdote
It is well known that Hamilton inclined to a less democratical form of government than the one that was adopted, although he was a zealous friend of the Constitution in its present shape after it had received the sanction of the Convention. He considered it less perfect than it might have been, yet he thought it an immense improvement on the old confederation. He drew up a plan in accordance with his own views, which he put into the hands of Mr. Madison, who took a copy of it, and returned the original to the author, telling him at the same time that he had preserved a copy. Mr. Madison says he knew not Hamilton’s motive for doing this, unless it was for the purpose of securing a written record of his views, which might afford a ready confutation of any future false statements respecting them.
See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, Appendix A, CCCLXVII, at 480. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003390%29%29
I'm not talking to Professor Jacobson, (whom I don't agree with on this topic anyway) i'm talking to you.
I don't care if the comment was "in Dicta", it still represents the understanding of the court. If it was wrong, the other 8 members would have objected to it.
This is like that dichotomy you would have us believe on "jurisdiction"; That it means something here, and something different there. You are now arguing that the Supreme Court knows what it is talking about in the body of it's ruling, but doesn't know what it is talking about when it writes "Dicta."
The Supreme Court clearly says in this Landmark Case on citizenship, that if you are born outside of the jurisdiction of the United States, you may only be a citizen by "naturalization."
As a matter of fact, if you look up that 1952 statute which grants citizenship to those people born to Americans in foreign countries, you will see that it says " NATIONALITY AT BIRTH AND BY COLLECTIVE NATURALIZATION."
It flat out says that it is a "naturalization" statute.
The requirement is “natural born citizen”, not “born a citizen”.
No. They only have power over declaring the rule of naturalized citizens.
Your assumption is akin to saying don't we need to define what negative integers is before we define positive integers?
, and the answer is no.
We can define positive integers by induction as:
I like how adherence to a consistent interpretation of Natural Born Citizen is portrayed as work against Cruz
— perhaps you would like to illustrate more areas in which the Constitution must bend to your whims?
It's also quite interesting that you equate liking Ron Paul (implicitly, on any level) to a sort of slanderous label.
Here's a question, in Post 65 DiogenesLamp agrees with my evaluation that the congress [and Judicial] cannot define natural born citizen — does that make him a Ron Paul devotee?
I disagree, you aren't including Republicans.
Let's face it: the Democrats
couldn't do anything if the Republicans
dug their feet in — we've been played. (Don't let the Republicans off the hook for the destruction of the country!)
(If anything, it's elites vs. the average Joe.)
If it did not then the UCMJ could not be applied to actions soldiers took in those places.
I like how one of the few remainders of the Ron Paul nut crew, and someone that has admitted to being a troll, has found a way to attack Ted Cruz in the 2016 election, by using the arguments that didn’t work against our two term sitting president, that this conservative would be replacing.
And you are an acknowledged statist who has every intention of using the threat of government force to impose your sensibilities on others.
You are an enemy of liberty, why should I value you opinion or scorn?
No, that is a troll’s lie, I am not an acknowledged “statist”, but you are a self admitted troll.
I will also point out to people that as you attack Cruz and are a Ron Paul nutter, that you also oppose Palin.
Just in case people wonder why you continue your charade against Senator Cruz and conservatives.
So then what you're saying is that if someone doesn't fall under the category of a naturalized citizen as defined by U.S. law then they must, by default, be a natural born citizen?
If Obama was born in 1961 outside the U.S., he would not be a U.S. Citizen at birth.
His birth would have been governed by the 1952 Immigration Act. The provisions of that act for a child born outside the U.S. to one citizen parent and one non-citizen parent requires that the citizen parent had to reside in the U.S. for 10 years, 5 of which had to be after their 14th birthday. Obama’s mom would have been to young to transfer citizenship to him.
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