[nathanbedford]

As I said in the beginning of this exchange, I am not eager to relitigate a matter which is now entirely moot and likely to remain that way.

As I recall, the argument on Ted Cruz' side is that a natural born citizen is one who is a citizen by virtue of the fact of birth rather than by virtue of adjudication. That principle, the argument goes, applies even though one fills out forms in a foreign country which simply automatically gain the baby citizenship.

This means that Congress has the power or the authority to define natural born citizen because the Constitution vested that authority in Congress, the phrase not being otherwise defined in the document and thus Congress is not superseding the Constitution. The first Congress seems to have assumed that was the case.

You believe that the next Congress disagreed and they well might have, even Scalia, however, would not presume to tell us which. On the other hand, the next Congress might simply have been redefining its notion of what qualified or should qualify for natural born citizenship.

I think there are strong arguments to the contrary, but as I say, the Cruz side is not without its arguments and has a procedural history indicating that it might never get litigated.

[Lurkinanloomin]

Chief Justice Waite, Minor vs Happersett

“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. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”