Posted on 09/05/2015 1:47:06 PM PDT by iowamark
Are you confused about the claim that Ted Cruz is not a natural-born citizen, with all its attendant disinformation? Well, here is your answer.
We have gathered together the top arguments of those who challenge Senator Cruz’s eligibility to serve as president, along with exhaustive research and links to original sources, and condensed it all into one, bite-sized yet authoritative piece. We have done all the work for you, assembling a definitive reference you can use any time you hear someone say that Ted Cruz is ineligible to run for and serve as president.
So without any further ado, here are the Top Ten Birther*Arguments against Ted Cruz’s eligibility, and the reasons they are completely wrong.
Argument 1 – “Natural-born citizen” (NBC) and “Citizen at birth” (CaB) have completely different meanings.
Answer – No, they do not. They are synonymous. If you think the idea they aren’t synonymous is silly, you may not need to go on, because unless it is true, the entire debate is over. You would also be in agreement with the Congressional Research Service, which published a paper in 2011 reaching the same conclusion. Trying to argue that they do not mean the same thing is akin to claiming the terms dog and domestic canine mean completely different things. The burden of proof rests with the Eligibility Challengers. I have never heard or read anyone provide any proof whatsoever for the contention these terms have different meanings. There is no case law, and nothing else in the U.S. code or the Constitution itself, lending support to the idea that the two terms have separate meanings. Claims to the contrary are dealt with serially throughout this primer.
Argument 2 – Cruz isn’t qualified because he’s not a natural-born citizen; let him stay in the Senate where he’s doing some good.
Answer – If Cruz isn’t qualified to serve as president, he isn’t qualified to serve in the Senate either, because he is not a citizen at all. There are only two types of citizenship: natural-born, and naturalized. If Cruz is not a NBC, he is not a citizen at all, because he has never been naturalized. I have heard and read many arguments put forth by Eligibility Challengers to the effect that while Cruz is not natural-born, he is still a citizen. The impossibility of this claim is supported by case law.
Argument 3 – A NBC is someone born on U.S. soil, whose parents are BOTH citizens.
Answer – This is false. The term NBC comes to us from English Common Law. This fact is confirmed and supported by judicial precedent. And at the time of the founders, the legal definition of NBC was more sophisticated and complex. It included children born on English soil, as well as children born on foreign soil, whose fathers were English subjects. This was in fact the standard for establishing citizenship at birth for most of the world at the time. The only distinction between then and now is that women are now considered legally equal to men, so that citizenship status may flow from either parent, not just the father. That is unless you want to try to make the argument citizenship status should ONLY flow from the father to the child, and the mother’s status doesn’t count. Good luck making that argument.
Argument 4 – The Framers used the definition of NBC established by Emer de Vattel in his book The Law of Nations, which requires native birth, and TWO citizen parents.
Answer – First, as noted above, the term NBC comes from English Common Law, not from Vattel, who did not use that term in writing his book. Second, there is no evidence the Framers gave Vattel’s work any special weight or influence when writing the Constitution. Vattel was a committed monarchist, and many of his views were antithetical to the Framers. Finally, Vattel did NOT use the two-parent citizens standard in his recognition of what he called “indigènes.”
Argument 5 – The Supreme Court case “The Venus” establishes a legal precedent defining the meaning of NBC
Answer – No, it does not. There is no such language in the opinion written in this case. Eligibility Challengers point to a quotation of Vattel’s The Law of Nations that is contained in the ruling, and claim it creates legal precedent establishing a definition of NBC. The trouble is the Venus was not a unanimous decision by the court. The passage quoted comes from the dissenting opinion of Chief Justice John Marshall. Dissenting opinions do not carry any legal authority or precedent. And as has already been established earlier, Vattel is not regarded as either the source of the meaning of NBC, or even particularly influential upon the Framers.
Argument 6 – The Supreme Court case Shanks vs. DuPont establishes a legal precedent defining the meaning of NBC
Answer – No, it does not. There is no such language in the opinion. The case is somewhat complicated, and concerns the question of when a woman by the name of Ann Shanks actually lost her citizenship status in order to determine the disposition of her estate after her death, not whether or not she was a citizen. The particulars took place during a unique time in history, that being the War for Independence with Great Britain, and Shanks’ citizenship status was controlled by a combination of factors, including her father’s choice to support the Colonials as opposed to the British, her age at the time of his death, and the particulars of the Treaty of Paris, which established the terms to end the war. The only precedent concerning citizenship established by this case is that one cannot gain or lose citizenship through marriage, even if that marriage is to an alien of a belligerent nation.
Argument 7 – The Supreme Court case Dred Scott vs. Sanford establishes a legal precedent defining the meaning of NBC
Answer – No, it does not. There is no such language in the opinion. As with The Venus, eligibility challengers are relying again on a quote taken from Vattel incorporated in one of the opinions written in the decision, but once again it is not the majority opinion of the court, but a separate opinion written by Justice Peter Vivian Daniel, and as with The Venus, it carries no legal weight or influence. AND as has been established elsewhere, Vattel was still not the source of authority for the meaning of NBC. (Apparently, however, he was quite influential on Supreme Court Justices writing minority opinions!)
Argument 8 – The Supreme Court decision Minor vs. Happersett establishes a legal precedent defining the meaning of NCB
Answer – No, it does not. There is no such language in the opinion. You can find a detailed analysis of the case here. I find the fact eligibility challengers ever refer to this case to be really ironic. Minor was a suffrage-era case in which a woman, Virginia Minor, argued that being a citizen by birth, she could not be denied the right to vote. The Supreme Court agreed that she was a citizen by birth (obviously), but that did not give her any such right—indeed, that the Constitution did not guarantee anyone such a right. The irony is the precedents this decision does establish actually defeat many of their own arguments. These include the Court’s finding that Congress could define the meaning of NBC, and that there were only two types of citizen, NBC and naturalized.
Argument 9 – The Supreme Court case United States vs. Wong Kim Ark has nothing to do with the question of NBC, because Wong Kim Ark’s citizenship “came from the 14th Amendment.”
Answer – This case is something of an “inconvenient truth” for eligibility challengers—first, because it is one of the most important court cases in U.S. history dealing with citizenship, and second, because rather than supporting their argument, it undermines it. It is truly shocking to see how many eligibility challengers don’t bother to read the cases they cite, as you will sometimes hear them claim that this case somehow proves their contentions about the definition of NBC. Quite the reverse is true. Wong Kim Ark clearly establishes English Common Law as the source of the Framers’ understanding of NBC, and that anyone born on U.S. soil, regardless of their parentage, obtains their citizenship at birth. By the way, this precedent also covers Sen. Marco Rubio, who some eligibility challengers also like to claim is not a NBC because his parents were not citizens at the time of his birth. Rubio was born in the United States, and so is a NBC.
Argument 10 – The Supreme Court case Perkins vs. Elg establishes a legal precedent to the effect that NBC requires TWO citizen parents
Answer – No, it does not. There again is no such language in the opinion. The typical claim is that the opinion says the only reason Perkins was a CaB is that her parents were both naturalized citizens, and this means you must have TWO citizen-parents in order to be a CaB. The opinion says nothing of the sort, and in fact actually makes clear the fact that her status as a citizen is established by her birth on U.S. soil alone.
It actually all boils down to just one argument…
The first thing one must understand is the entire eligibility-challenger argument as it pertains to Ted Cruz is based on two assertions:
Briefly, these two assumptions are vital to ALL arguments made by eligibility challengers, because, as noted earlier, NBC and CaB are synonymous terms, and the definition of CaB is contained in Title 8, Subsection 1401 of the U.S. Code. By claiming the two terms are not synonymous, they believe they can dispense with the definition contained in 1401 altogether. This is vital to their arguments, because under 1401, Cruz is clearly qualified to serve as president. This is not some dodge or loophole as eligibility challengers may imply, this law is many decades old, and predates Cruz’s birth. Subsection 1401 has been the controlling legal authority on the definition of who is a natural-born citizen, a.k.a. citizen at birth, since its codification, and in fact is supported by Supreme Court precedent as well as all our history. Vattel, Wong Kim Ark, Shanks and all the rest is just window dressing.
In conclusion, not a single argument put forth by the eligibility challengers holds up. Each is either a misinterpretation at best or an outright falsehood at worst. Arguing over this issue has become a waste of time much better spent on other things. Unfortunately, there are a few folks who continue to cling to this view, and equally unfortunate is the often venomous attitude they display toward anyone who disagrees with them. Most of the arguments you may encounter will consist of one or more of the claims we have covered above. And most of the time, they will count on you not bothering to actually try to research or verify what they claim a particular court case says. Consider this your “Cliff Notes” on all their arguments—a concise, documented reference to all that is wrong about their claims.
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*Birther – Although this term is proudly worn by some, it is often used as a demeaning pejorative, which is not our intent. Unfortunately, it is also the only widely recognized term for those who argue against the eligibility of Cruz, Obama, Rubio and others, based on their misunderstanding (or to be fair, their misrepresentation in some cases) of U.S. law. To avoid the appearance casual insult, we have substituted the term Eligibility Challengers throughout most of this work.
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Additional research and documentation can be found here:
Primer on the Eligibility of Ted Cruz for President in 2016: Part 1 – Did Vattel’s The Law of Nations provide the Framers’ definition of Natural Born Citizen? by Patrick Colliano
Primer on the Eligibility of Ted Cruz for President in 2016: Part 2 – An Analysis of Minor vs. Happersett, by Patrick Colliano
Primer on the Eligibility of Ted Cruz for President in 2016: Part 3 – Analysis of The Venus, Wong Kim Ark, Shanks vs. DuPont and other SCOTUS precedents dealing with Citizenship, by Patrick Colliano
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About the authors – A very common accusation hurled at anyone skeptical of “Birther” theories is that they are motivated by simple political partisanship, so it is worth noting that Mr. Colliano and Mr. Conterio occupy opposite ends of the political spectrum on most issues.
Mr. Colliano is comfortable being described as generally liberal. No supporter of Ted Cruz, he says ” Even as I was writing my essays, the news was reporting his one-man filibuster of the Affordable Care Act. I had to ask myself again why I was bothering to spend my time and creativity defending this guy. The answer, of course, is that it’s right. If Cruz wins the next Presidential election, especially by a narrow margin, I could end up kicking myself for it. But Ted Cruz, like all candidates for public office, deserves to be judged upon his merits, not rejected on the basis of some ridiculous misconception that he is not eligible.”
Mr. Conterio is unabashedly conservative in his views, as regular readers of WFP will undoubtedly know. He says “I was actually beguiled by the early reports and arguments that Obama may not be a natural-born citizen, but was quickly disabused of the idea after spending an afternoon verifying Obama’s parentage, and going straight to the U.S. Code to see what it says about being a natural-born citizen. I knew at that point it was foolishness. Today, I probably have just as many conservatives who don’t like me as liberals, due to my persistent habit of debunking their claims about Obama, Cruz, or Rubio. It is way past time we move beyond the ‘birther’ phenomenon.”
Everythng I’ve read from liberals is that they support Cruz’s eligibility because it justifies Obama’s eligibility. I suspect that Democratic Senators will sponsor a resolution for Cruz just like they did for John McCain over his birth in the Panama Canal Zone.
Liberals love to look “bipartisan.”
Here’s a link to a pro-Cruz’s eligibility article in a liberal publication, if you’re interested:
“Yes, Ted Cruz Can Be Born in Canada and Still Become President of the U.S.”
http://www.theatlantic.com/politics/archive/2013/05/yes-ted-cruz-can-be-born-in-canada-and-still-become-president-of-the-us/275469/
of course the libs will endorse his nomination. because if he gets it, the following week the dem nominee will file against his eligibility... and win easily. leaving the GOP scrambling for a replacement, which would have very little momentum. for elections decided within a 5% margin, this would hand them a landslide.
and it wouldn’t impact 0bama as SCOTUS would rule being born within another country invalidates his eligibility. this would leave 0bama’s eligibility intact and would ring true to joe-average (tho it’d still leave the question open on whether or not a NBC needs 2 US citizen parents at birth)
“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.” Minor v. Happersett, 88 U.S. 162, 168.I disagree. If we look at the bold text in context what they are saying, IMO, is that the "court" can not ascertain what also might qualify as an NBC but they went to say we are certain that a child born here to parents who are citizens there is no doubt. So from that date to present there has been no other definition offered so we are still working with the one mentioned.
I’ll leave predicting the future to you. I prefer to look at facts: what has happened and what is happening now.
Based on what has happened with Obama and the theory that he was not born in the U.S., the challenges to his eligibility helped him with undecided voters more than it hurt him. That’s why he wanted to keep the issue alive rather than resolving it.
Some people born in the U.S. are citizens by law and some people born in the U.S. are not citizens by law. If birthplace cannot determine citizenship, how can it determine natural born status?
predicting the future? i guess. it’s normal to understand the enemy and anticipate their strategic moves.
it’s also considered wise to avoid exposing any obvious weaknesses they can take advantage of.
TCruz’s eligibility issue is extremely low hanging fruit... but unlike the dems, voters on the right tend to take the Constitution a bit more serious and overwhelming see ‘natural born citizen’ as being someone that was actually born in this country.
‘the challenges to his eligibility helped him with undecided voters more than it hurt him.’
Kindly produce a link that is FACT not opinion-based.
‘That’s why he wanted to keep the issue alive rather than resolving it.’
A flat out lie. He tried to resolve it with a disputed COLB, and did his best to brazen it out. When Trump forced the issue Obama’s credibility eroded and the # of people who believed he was foreign born began a moderate but steady climb. In a panic, he produced a forged LFBC.
Now take your liberal talking points to a liberal site. Leftists are the only ones who still believe them.
I believe its still true that in the United States of America and especially here on Free Republic a person is allowed to express an opinion.
It is my personal opinion that the natural born citizen issue was used by the Obama campaign to try to get votes.
When the campaign produced the first copy of the Certification of Live Birth in June of 2008, they placed the digital image of that document on the “Obama For America” [campaign] web site and they created a new, special [campaign] web page called “Fight the Smears” to show the birth certificate image.
They also sold birth certificate tee shirts and coffee mugs with the image of the birth certificate on them.
http://gawker.com/5803136/obama-campaign-selling-official-birth-certificate-shirts
http://www.zazzle.com/obama+birth+certificate+mugs
Have you seen any of the sixteen other Republicans who are currently trying to get the nomination challenge Senator Cruz’s eligibility?
if i were running and had the attitude that i’m better then the rest, why would i bother to point out their eligibility requirements? that would presuppose they got the nomination... which would mean i believe i could not beat them.
the dems are praying for TCruz to get the nomination
I think the Dems are all in for Bush.
He’s the soft target for November.
I could see Senator Cruz on the ballot in the Vice Presidential slot but at 8% in the polls, the nomination looks very much like a long shot at this point in time.
Why are your opinions always 100% in agreement with liberals?
You are totally wrong about the COLB. It was originally released on DailyKos. Initially, the WH made no claim to have given the COLB to Kos.
Stick with the facts.
So according to the liberal meme—excuse me, your opinion—Trump should have paid a negative price for challenging Obama on the BC issue, right, Nero Germanicus?
The strongest argument to be made proceeds off two U.S. Supreme Court cases that draw the distinction between being born in the U.S. versus being born outside of it. Ironically, one of the cases -- U.S. v. Wong Kim Ark -- is one the article (along with a referenced article) holds up in supposed support as a counter to the erroneous Vattel-based challenge.
Wong Kim Ark, as is generally known, involved a challenge to citizenship brought against a person born in the U.S. to Chinese national parents. The Court in a length opinion traced the origins of the U.S. birth citizenship rule from the English common law through the advent of our U.S. Constitution and through the adoption of the 14th Amendment. One of the arguments raised by the U.S. Government in opposition to the common law argument was that statutes enacted (both in England and in the U.S) naturalizing the foreign-born children of natural born subjects/citizens recognized the jus sanguinis principle which was becoming more the norm in international law. The Court rejected the argument that such statutes supplanted the established common law rule of citizenship by birth within the realm.
So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion.
Later in the opinion, the Court affirms the common law jus soli rule, while stating the effect of statutes concerning foreign-born children:
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 [p703] 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.
So the Court notes that foreign-born children who are made "citizens at birth" by statute are citizens by naturalization.
These statements about foreign-born children in Wong Kim Ark are obiter dicta, as that case did not involve a foreign-born person, and as such the statements are not binding. However, this may be less so with a more recent case, Rogers v. Bellei.
Mario Bellei was born in Italy to an Italian father and American mother. He was a U.S. citizen at birth by virture of a then-applicable statute granting citizenship to foreign-born children, one parent of whom is an American parent and the other an alien. The statute provided for cessation of the child's birth-citizenshp upon failing to reside in the U.S. for a specified period after attaining age 13. Bellei did not meet the residency requirement. After he received notice of termination of his citizenship status, Bellei filed suit, claiming that he had not given the assent requisite to forfeiture of citizenship under the Constitutional standard set forth in Afroyim v. Rusk, a case decided a few years earlier.
In affirming the power of Congress to attach conditions to the grant of citizenship, the Court distinguished Afroyim on the grounds that Bellei's citizenshp did not fall withn the Contitutional parameters set out in the 14th Amendment. After citing to Justice Gray's extensive discussion of the 14th Amendment in Wong Kim Ark, the Court states:
Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. (italics in original)
The argument that theoretically could be brought against Ted Cruz is that his citizenship, while exiting from the time of his birth, is (like Bellei's) not a constitutional citizenship in that his birth did not occur IN the United States per the 14th Amendment and the common law. Thus, if his does not fit within the Constitutional definition of citizenshp, then how can it be said he's a "natural born citizen" within the meaning of Article II?
This, to my mind, is the "Top" argument that could be made. (The "Vattel" theory is nonsense, but it's the one that keeps getting attention). Though that would likely require the claim to be brought by a viable presidential contender (which won't happen) who is represented by competent legal counsel (which, failing the first requirement, won't happen either). The curious thing is that so many (if not nearly all) of the articles on this topic simply skirt past these cases and don't acknowledge this argument. One would think even if an author felt the cases didn't apply in the end, that two Supreme Court cases exist seemingly on point would warrant at least footnote treatment.
The COLB was posted on the Daily Kos blog on June 12th, 2008 and it was posted on the Obama campaign web site on June 13th, 2008, a day later.
Perhaps the campaign’s IT person took a sick day on the 12th?
Those are the facts.
http://www.politifact.com/truth-o-meter/article/2011/apr/27/obama-birth-certificate-timeline/
http://www.dailykos.com/story/2008/06/12/534616/-Obama-s-birth-certificate
Has Donald Trump been elected to some position that I haven’t heard about?
My OPINION was that the natural born citizen issue helped Obama with undecided voters.
Obama faced a huge problem in getting elected and reelected: the demographics of the American electorate. Blacks made up 12% of voters and white liberals made up 22%.
34% of the electorate would add up to monumental failure. Obama needed two other demographic groups to get himself to 50%: Latinos and Asians. But there was an additional problem. Neither of those groups are particularly fond of blacks, particularly Asians who don’t qualify for affirmative action programs while Latinos are often in competition with blacks for jobs and low income housing.
But Latinos and Asians could identify with Obama’s foreign born father and the fact that some folks didn’t consider him to be a real American. In 2008 Obama got 66% of the Latino vote and 62% of the Asian vote. In 2012 he got 71% of the Latino vote and 73% of the Asian vote.
It is my PERSONAL OPINION that the natural born citizen issue accounts for some of that support.
If anyone uses their search engine of choice to read political opinion and research articles on the Asian and Latino vote for Obama you will see identification with his “immigrant father story” as a factor, even though his father hardly qualified as a true immigrant.
bkmk
It does not need to be a "precedent". It is merely the opinion of the most authoritative and informed Justices of that time period.
Your argument is that "because it isn't "precedent" they don't know what they are talking about.
No, they *DO* know what they are talking about.
That is my opinion too. It no longer matters what is the truth. There really are no longer any particular qualifications to be regarded as a "natural born citizen."
Anyone who acquires citizenship at birth is good enough. That is a stupid standard, but we are now a very stupid people.
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