Posted on 01/19/2016 12:05:02 PM PST by Faith Presses On
(snip)
The problem is not, as some commentators have claimed, a legal doctrine known as "standing" -- a rule that requires that a person who comes to court must have a proper legal interest at stake in the litigation. Rather, the biggest barrier is a principle of judicial restraint known as "the political question doctrine."
A key idea underlying this doctrine is that the Constitution itself, in its text or spirit, sometimes takes a certain sort of constitutional question away from ordinary courts and makes some other decision-maker the real judge -- a special court for a special question. In a presidential impeachment, for example, the Senate, and only the Senate, is the real court. Senators are the judges and jurors -- the deciders of fact and law -- under the Constitution itself.
(snip)
Now return to Cruz. Here, too, his eligibility -- whether his birth certificate is good enough -- is in certain situations an issue not best decided in an ordinary courtroom. Under the structure of the Constitution, and in keeping with American traditions stretching back to the founding, the proper court to judge Cruz's eligibility is, first and foremost, the court of public opinion. Anyone who thinks that Cruz is not eligible is free to vote against him.
(snip)
A sober court should think twice -- thrice! -- before jumping in. True, unlike our soldier scenario, the Congress has not yet weighed in, so there is no res judicata issue. But unless Congress itself enters the lawsuit and asks the court to keep Cruz's name off the ballot...the court should butt out and deny the official the permission she seeks...If he wins, Congress can decide what to do, and Congress is the proper judge here.
(Excerpt) Read more at blogs.reuters.com ...
Bingo - Amar is arguing to have no hearing, because he will exposed as incompetent at best, and considered a fraud by many.
Don’t the people ultimately have the power? Wasn’t America about “self-government”?
Why let people even vote then? Maybe let the educated lawyers pick the representatives and judges, and let the judges pick the President. Get the people right out of the mix.
This questions hits right at the heart of being a republic, with three branches of government, and all the related questions of who has power.
Doesn’t the Supreme Court merely INTERPRET the law, not make it?
So where are the laws made by Congress, for the Supreme Court to decide upon, on who is NBC, including provisions for checking the candidates’ qualifications and remedies for legally preventing some candidates from getting on the ballot?
It’s not that the court will be public opinion, it’s that this is a political matter and thus a matter for the Congress, and not the court of public opinion.
And when has Congress ever done anything on it?
One irony is that people who believe they’re arguing for something like the “founders’ intents” in this case are arguing something more like “this is what the Founders should have done,” or “this is what the Founders really wanted to do.” But it’s not what they actually did.
Look at the bright side. He’s exposed numerous legal academics as agenda-driven frauds. What do they think they are? Judges?
Some things come of common sense... Course I do not come at this attempting to be given something of which I am not entitled to have. It is not my fault Cruz is not natural born.. This mess is of his own making by claiming he fits the Constitutional ‘original intent’ requirement to hold the office of president.
Whatever happened to the claim of accepting personal individual responsibility... Why do the Cruz supporters exempt him from that standard? It is pathetic that the supposed people that claim to follow original intent, will now over one man wanting something he is not qualified to be, shred their Constitutional credibility... Where is Ted’s conservative values when he has already taken an oath to defend and protect the Constitution? But now for his self serving purposes seeks an exemption.
Complete with a set of matched pistols!
Dueling pistols.
Why don’t we just try all cases in the “court of public opinion”?
At any rate, what the founders actually did, that's in the constitution. Art IV, Sec. 2, 14th amendment, and a power to Congress to makes of naturalization. There is a body of law outside the constitution, more like legal principles (constitution is superior to a statute, due process includes you get to tell your side); and citizenship law between nations is one such body of ancient law. This body of law is WELL KNOWN, to lawyers.
That’s exactly the sort of scenario that it seems many people are thinking of when opposing Cruz’s candidacy.
The thing is, the Constitution writers were well aware of the scenario of people born to American citizens outside of the country.
They chose not to enshrine an answer to that question, to make a proposal and vote on it.
And it was a matter that was apparently controversial then given that it changed between 1790 and 1795.
But all told, they did not leave us with an answer, a legally-binding written answer, knowing the implications of not doing so. They didn’t legally bind to anything but “natural-born,” which needs a definition. The definition they legally passed to others.
Now consider the scenario of your Iranian-born U.S. citizen. Has one parent American born, and is American from birth. Has to reside in the U.S. at least 14 years (a surprisingly low number, even in 1789).
Stepping back, shouldn’t the determination of such a person’s allegiances, and any candidate’s allegiances, be based on a whole host of things? And that includes what the country is like that they were born in, and how long they were raised there, and what their parents were like.
Not that I don’t think there were legitimate questions brought up about Obama’s birth, like the possibility of him not being born an actual legal citizen at all, and so possibly raised identifying as not American, and that being covered up.
But if so much energy hadn’t been used in trying to legally challenge his eligibility, then maybe all the questions about his allegiances, regardless if he was born in Hawaii or Kenya, would have been brought up more instead.
He was advocating communism as a law professor, but that got little attention.
Everything was put into the “birther” basket, and as it came to be known, the deck was legally stacked against that succeeding.
And then on your Iranian born U.S. citizen scenario, look how now we have American-born and European-born jihadists. Natural-born American jihadists.
When people are legally citizens from birth, we have to put the focus on having the public examine their past, their parents’ pasts and their allegiances, whether they are Ted Cruz or Hillary Clinton.
Here’s a question your position can’t answer:
If the Constitution writers settled NBC as you say, and only naturalization was left to Congress (as if the two can be considered entirely separately) then why wasn’t the Naturalization Act of 1790 either challenged or even described as Unconstitutional? Why wasn’t it Unconstitutional for Congress to define NBC, and especially as it did?
We’ve gotten to that point almost, with social media controlling people, and itself controlled by the ordinary media and secular humanists in general.
But in the NBC case, that’s a straw man argument.
The Constitution writers’ didn’t legally define NBC, though (1) they might simply have done so, (2) they were fully aware of the “are foreign-born children of U.S. citizens NBC” situation, (3) they went into great specifics, leaving detailed directions and definitions, on other matters.
They therefore left the question of defining NBC when it came to the question of FBC of U.S. citizens to others.
In 1790 Congress passed the Naturalization Act of 1790, and it legally defined NBC. Was this ever considered Unconstitutional, outside the scope of Congress’s jurisdiction since they passed a law on NBC?
How about just not letting people who were citizens of foreign countries be President? That seems like the simple and easy solution to me.
The words of the 1790 Act are not a definition, even though it's popular to think so, and even though the Senate claimed it was, etc.
The phrase that appear in there is "shall be considered as." This operates to create a legal fiction. A couple examples, to show that this is not a definition. It wasn't a definition in 1790, and it isn't now.
"X shall be considered as Y" means "X is not Y, but we will pretend it is."
There is a US regulation on social security, 20 CFR 416.1856. Who is considered a child. It says that if you are under 22 years old, you will considered a child. That is not a definition that a 21 year old is a child. It is a statement that the law will pretend they are a child, until they are 22 years old.
It was unconstitutional for the 1st Congress to define NBC in a statute, certainly to a birth abroad. The constitutionality was never tested, how often do we get a mix of election and an unqualified candidate? The law was repealed in 1795. Somebody probably figured out that what was done in 1790 was unconstitutional, and rather than test it in court, they got rid of it.
Here is another thought for you. Cuba has a statute that is similar to the US. When Ted was born, on his birthday, Cuba had the same claim on Ted that the US did. Born abroad of one citizen parent. Mom was US, Dad was Cuba, both countries automatically attach citizenship at birth. Now, the law looks at the birthday, and stops. It can't predict how the human's life will proceed.
Your interpretation here isn’t consistent. If “considered as” doesn’t mean a child was born NBC, then why do you say the act of 1790 was unconstitutional?
(Interesting that you believe the first major act on naturalization a mere one year after the Constitution was passed was unconstitutional).
“Consideration” can simply mean “under the law,” which is what we are talking about.
To be “natural born,” in the strictest sense, might mean to come into this world as the product of two different-sex parents, and born of a woman. Jesus Christ, then, was only partly “natural born,” in that He was conceived of the Holy Spirit. That is, unless one only wants to speak of His birth, which appears to have been natural.
We could ask, what is CONSIDERED to be “natural-born citizenship” under American law?
“Natural born citizen” needs defining, and in the course of having been in and read some of the debates, it doesn’t seem like those who oppose Cruz’s candidacy even have one definition of it among themselves. If there is one, I would like to see it.
And what do you think of Hillary Clinton’s email situation?
That doesn’t settle the NBC question. Do all countries grant citizenship to children of the citizens of other countries just by virtue of them being born on their soil. IIRC the answer is no.
And couldn’t someone be born on American soil and acquire dual citizenship later.
Here’s another question too.
Why did the Constitution writers only require a President to have resided in the U.S. for a mere 14 years?
Seriously think about that. According to the Constitution, someone could be born here a U.S. citizen, leave at age 2, return at 23 (spending their entire formative years and making deep ties somewhere else) and then run for President and assume office at 35.
The Framers in Article II distinguished between a “citizen” and a “natural born citizen”. The first Congress, many members of which were Framers, in the Naturalization Act of 1790 distinguished between a “citizen” and a “natural born citizen”.
In the Naturalization Act of 1790 the distinguishing characteristic between persons naturalized with a status of “citizen” and those naturalized with a status of “natural born citizen” was parental US citizenship.
Congress in the Naturalization Act of 1795, et seq, no longer made such a distinction and declared all such persons naturalized to be “citizen”.
Are we to conclude that subsequent to 1795 there were no further “natural born citizens”? They ceased to exist? Or are we to conclude that other children born with parental US citizenship - those who were not “born beyond Sea, or out of the limits of the United States” - those born within the United States - are “natural born citizens”? Or are these other children - born with parental US citizenship within the United States - something other than “natural born citizens”? Was it necessary that they be “born beyond Sea, or out of the limits of the United States” for them to be “natural born citizens”?
The only rational conclusion is that those born within the United States with parental US citizenship are “natural born citizens”, and all others are not.
The 1790 Act et seq. also demonstrates that the foreign-born children of citizens have always required naturalization. The 1790 Act provided a legal fiction that some naturalized persons be “considered as” natural born citizens, not that they are natural born citizens.
-- Your interpretation here isn't consistent. If "considered as" doesn't mean a child was born NBC, then why do you say the act of 1790 was unconstitutional? --
Because a statute can't amend the constitution, see Marbury v. Madison
-- We could ask, what is CONSIDERED to be "natural-born citizenship" under American law? --
Law of nations, nations being geographic boundaries on the face of the earth. Is a person born in Germany (no connection to the US) a citizen of the US? Why not? What is the "natural" assignment of citizenship, viewed from the perspective of nations. Why did Mary and Joseph go to Jerusalem? The notion of (national) citizenship is literally ancient.
-- "Natural born citizen" needs defining --
I agree, but I am not hopeful it would be respected, any better than any other part of the constitution is respected. It will get killed off by abuse or neglect.
The NBC clause is inoperative now, for all intents and purposes. Obama isn't qualified, he's usurped the office with the help of Congress and neglect of SCOTUS, and the people are to docile to do squat about it, if they were smart enough to figure it out in the first place.
Born abroad to parents who are legal permanent residents of the country abroad, and not there on any government business, aren't NBC. That is the easiest case imaginable.
-- what do you think of Hillary Clinton's email situation? --
She's a felon. She'll get away with it.
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