Posted on 02/19/2016 6:36:53 AM PST by Enlightened1
Here is what the Constitution says about who can be president:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
The problem is the Constitution doesn't define "natural born Citizen." Neither does any current law. And no one has ever brought a court case to decisively settle the question as a matter of US law.
There are three ways someone can be a US citizen. He can be born in the US (regardless of who his parents are). He can be born outside the US to at least one US citizen parent, as long as certain criteria are met (those criteria are set by federal law and have been changed over time). Or he can immigrate here and then successfully apply for citizenship, a process called naturalization.
Everyone agrees that the first category of people are natural-born citizens. Everyone agrees that the third category of people are not natural-born citizens (regardless of how unfair it might be that immigrants can't be president). But Ted Cruz is in the middle category, and this is where the meaning of "natural born" starts to get fuzzy.
(Excerpt) Read more at vox.com ...
* yawn *
The Founders read Vattel in the French original form and utilized his ideas and concepts extensively. They chose his interpretations over English common law in many instances.
None of this, however, is to say that they specifically drew upon Vattel when they were crafting the NBC clause, or that they had him in mind with regard to its interpretation. Madison seems, in fact, to suggest the opposite, from congressional debate on May 22, 1789,
"It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other."
He previously states that this was a "general principle" which he was going to use in his argument regarding the eligibility of an elected member of Congress who was accused of not meeting residency requirements. Madison argued that he DID meet the requirement because he was essentially a natural born citizen of South Carolina, based upon the fact that he was born in that (at the time) colony - nothing at all was said about his parentage, and Madison even says that place, not parentage, was what applied in the USA.
The Founders quoted Vattel's treatise to each other and went back and rewrote the section on qualifications for the Presidency specifically to address the issue of Natural born citizen as defined by Vattel. The Founders and the early Congress specifically revised the Immigration act of 1790 in 1795 to codify that American law differed English common law and to protect from an American President who could be claimed as an English subject.
In the process of codifying that difference from then current English law, they were in fact returning back to an earlier and more enduring and settled common law definition of natural born citizen. The English laws in question were recent innovations, and it's doubtful that, based on the Founders' reverence for Blackstone as well, that these laws were even thought of as being part of "the common law."
At any rate, the changes wrought in 1795 were *not* in accord with Vattel. Indeed, they'd most likely represent a move further away from Vattel's definition.
The great irony in all of this is that if folks really want to rely this heavily on Vattel, then the situation for Cruz is even worse than merely from a jus soli standpoint, for Vattel defines an NBC (well, maybe, I think the translation from French on this point may be a little inaccurate and self-serving) as one "born in the country, of parents who are citizens." In other words, per Vattel, you're ONLY an NBC is you BOTH are born here AND have parents who are citizens - which could, depending on if one or both parents are required, doubly disqualify Cruz.
At any rate, the sum total of opinions given by the early jurists, etc. firmly demonstrates that jus soli is pretty much settled as "the" interpretation of NBC.
I’ll repost something I put up a couple of weeks ago:
The problem with folks who try to rely on Vattel’s NBC definition drawn from natural law is that Vattel went on to state that each nation typically enacts some form of positive law (which can, in context, refer to common law, since it is basically just made up of accumulated jurisprudence) which more or less overrules the natural law interpretation.
Most people don’t know that.
However, jurists who actually relied upon common law pretty clearly state that natural born citizenship descends from place of birth. For instance, Blackstone unambiguously defined a NBC as “such as are born within the dominions of the crown of England,†while “those who are born out of it†are aliens.
James Madison wrote in a letter dated May 22, 1789,
“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.â€
So first of all, you want the Founders’ intent - THAT is a pretty good indicator of it, since Madison was a major author and propagandist for the new Constitution, and presumably knew what it’s provisions meant to those who wrote them.
Zephaniah Swift, in his 1810 work A System of the Laws of the State of Connecticut wrote,
“It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection...
“The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.”
St. George Tucker wrote in 1803 in his commentary on Blackstone,
“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence...
“A very respectable political writer makes the following pertinent remarks upon this subject. ‘Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it.’â€
In his Commentaries on American Law, James Kent, the “father of American Jurisprudence,†defined a native-born citizen (which was used by pretty much all writers synonymously with “natural born citizenâ€) as,
“Natives are all persons born within the jurisdiction and allegiance of the United States.â€
In William Rawles’ 1829 work A View of the Constitution, he wrote,
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity...Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.â€
Supreme Court Justice Joseph Story, in 1840 wrote in his A Familiar Exposition of the Constitution of the United States using the same definition of “native citizen†as used by Rawles and Tucker,
“It is not too much to say, that no one, but a native citizen, ought ordinarily to be intrusted sic with an office so vital to the safety and liberties of the people.â€
Earlier, in his opinion in the 1830 case Inglis v. The Trustees of Sailor’s Snug Harbor, Story wrote,
“Now, allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and, consequently, owe obedience or allegiance to, the sovereign, as such, de facto.â€
See also the 1844 case in the New York Court of Chancery Lynch v. Clarke in which the court explicitly stated that natural born citizenship derived from place of birth, AND that this finding is quite in line with English common law, upon which every state’s (except Louisiana) laws, as well as the Constitution, are rooted.
We should also note the simple fact that the 14th amendment as affirmed by several cases postdating, including but certainly not limited to the Wong Kim Ark case, also makes the distinction been those who are born in the USA and those who are naturalised - the former are NBCs, the latter are not.
Another good resources - The Natural Born Citizen Clause as Originally Understood
QUITE clearly, natural born citizenship depends on place of birth in our common law system, not on Vattel’s (non)argument for parentage.
If anything happens to Cruz over this hold onto your hats ladies and gentlemen GOP-e will be like rabid pit bulls after Trump their boy Rubio will be in 2nd and WE will be screwed as usual!!!!
One section states that US Military Bases overseas are not part of the USA and the other deals with children born to US citizen parents (note plural).
As I said 1985.
well, thats that.
Thank you, that is an interesting examination. I have gathered information and formed ideas on this subject over time and have encountered an excellent discussion of the influence of Vattel & Blackstone on the Founders and their intent when drafting the constitution.
Thomas Jefferson, who penned Virginia’s Citizenship statue in 1779, “Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens.” As can be seen Jefferson is equating citizenship of the child to that of the parents, and not the land.
For further proof on the question of Vattel’s influence we only need to look at Benjamin Franklin. In 1775, he observed, the importance of the Law of Nations, on the Founding Fathers and he then ordered 3 copies of the latest editions. The Library Company of Philadelphia which holds one of the three copies, lists the 1775 reference to this book, as “Le droit des gens,” from the publishing house of Chez E. van Harrevelt in Amsterdam, Holland, with a personal note to Franklin from the editor of this edition, C.G.F. Dumas. The fact that this particular volume that Franklin ordered is in French is significant, for at that time French was considered by the “family of nations” to be the diplomatic language, and the 1775 edition was considered the most exact reference of Vattel’s Law of Nations.
There is no doubt that the Founding Fathers did not exclusively use the English translation, but relied upon the French original. On December 9th of 1775, Franklin wrote to Vattel’s editor, C.G.F. Dumas, “I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the Law of Nations. has been continually in the hands of the members of our congress, now sitting. Accordingly, that copy which I kept has been continually in the hands of the members of our congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author.”
Samuel Adams in 1772 wrote, “Vattel tells us plainly and without hesitation, that `the supreme legislative cannot change the constitution” Then in 1773 during a debate with the Colonial Governor of Massachusetts, John Adams quoted Vattel that the parliament does not have the power to change the constitution. John Adams as so taken by the clear logic of Vattel that he wrote in his diary, “The Idea of M. de Vattel indeed, scowling and frowning, haunted me.” These arguments were what inspired the clause that dictates how the Constitution is amended. The Framers left no doubt as to who had the right to amend the constitution, the Nation, (that is the individual States and the people) or Legislature (which is the federal government.)
In the Federalist Papers number 78, Alexander Hamilton also echoed Vattel, and both of the Adams, when he wrote, “fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness.” Then in 1784 Hamilton arguing for the defense in the case of Rutgers v. Waddington extensively used Vattel, quoting prolifically from the Law of Nations. The Judge James Duane in his ruling described the importance of the new republic abiding by the Law of Nations, and explained that the standard for the court would be Vattel. He ruled that the Statues passed under the color of English Common Law, must be interpreted from the standpoint of its consistency with the law of nations. This concept of Vattel lead to the creation of the Judiciary branch of our government to insure that Congress could never legislate away the provisions of the Constitution.
In 1794, then President Washington was faced with the first threat to his Neutrality Proclamation of that same year by the Ambassador of France, Citizen Edmond-Charles Genêt to honor their treaty and support France’s wars with England and Spain. In a very rare agreement both Jefferson and Hamilton using Vattel’s Law of Nations they were able to give Washington the international legitimacy not to commit the United States to war in 1793. Genêt wrote to Washington, “you bring forward aphorisms of Vattel, to justify or excuse infractions committed on positive treaties.”
At this point there can be little doubt that the Framers of our Constitution considered both Blackstone and Vattel, and they choose Vattel over Blackstone.
The Founding Fathers placed into Constitutional concept that the loyalty of a Natural Born Citizen is a loyalty can never be claimed by any foreign political power.
The only political power that can exclusively claim the loyalty of a natural born citizen is that power that governs of his birth. Vattel by including the parents and place removes all doubt as to where the loyalties of the natural born citizen ought to lie, as Vattel’s definition removes all claims of another foreign power by blood or by soil, and is the only definition that is in accord with Jay’s letter to Washington.
http://birthers.org/USC/Vattel.html
BTTT
Cruz doesn’t meet that criteria either.
It is a conundrum for sure.
We all know the law is whatever some degenerate in a black robe says it is depending on the phase of the moon, there is no logic or precedent used when they want a particular outcome.
But from a logical perspective if Osama Bin Laden raped an American woman and she gave birth to a son in Pakistan and he lived there for 30 years , he could be President too when he turned 35.
Right. It needs to be cleared up. But expect appeals. And don’t rule out Congress naming him ineligible.
We all know the law is whatever some degenerate in a black robe says it is depending on the phase of the moon, there is no logic or precedent used when they want a particular outcome.
But from a logical perspective if Osama Bin Laden raped an American woman and she gave birth to a son in Pakistan and he lived there for 30 years , he could be President too when he turned 35.
If Cruz is eligibe being born in Canada, then Obama is eligible even if he was born in Kenya.
Mark Levin is no dummy, he believes Cruz to be eligible.
Why do I have the feeling that if Cruz was being sued he loses but if Obama was being sued he wins?
LOL
Thats a good one!
Yep!
Yep.
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
This clause gives congress the authority to pass laws necessary to carry out the powers vested in the Federal government by the constitution and nothing further.
If you would read through the powers of congress grante by the constitution you will not find any power where the legislature is given the power to redefine words in the constitution to suit their whims.
The laws can not change the constitution
The constitution either means what the framers intended it to mean or it is meaningless and we are slaves to who ever sits in the Oval Office
It gives them the power to change the constitution. When the constitution doesn’t define a concept or phrase they have the power to define it.
The courts have the power to interpret the constitution.
This is the system the founding fathers created.
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