Posted on 01/17/2016 4:30:15 PM PST by 2ndDivisionVet
Trump's "birther" theories have sparked a growing controversy in the Republican Party and critics are now using it to question the eligibility of Ted Cruz, Marco Rubio and even Donald himself.
Donald's "birther" theories have sparked a constitutional lawsuit in Houston questioning Cruz's eligibility to be president, while Trump defended Rubio Sunday morning saying he was a natural born citizen.
Meanwhile, a strict interpretation of Donald Trump's own "birther" theories could call into question his own eligibility to be president because his mother was born in Scotland, according to CNN.
"I would note that the "birther" theories that Donald has been relying on, some of the more extreme ones insist that you must not only be born on U.S. soil, but have two parents born on U.S. soil. Under that theory, not only would I be disqualified, Marco Rubio would be disqualified, Bobby Jindal would be disqualified and, interestingly enough, Donald J. Trump would be disqualified."[continued]
(Excerpt) Read more at inquisitr.com ...
Not according to our new Elegibilty Czar, Trump. He claims Obama is.
You know, in 1776, you tended to settle in whatever country you were for some time. Now you can hop on a plane and go to another country in a few hours. I think the citizenship factor is more important than the soil you’re born on these days.
“Here is the actual rule, I believe...”
“There is a 5 year residency requirement for the offspring to be a natural born citizen...”
Wrong for a number of reasons.
First, those Naturalization Acts were repealed in 1795 and in 1802, respectively. After 1802, many children of U.S. citizens born abroad were ineligible to be born with U.S. citizenship and wer born with alien citizenship. This situation was not changed until the middle of the 19th Century.
Second, the Naturalization Act set forth the requirements for the said person to be “considered as” a natural born citizen, which is the typical and direct legal language signifying the person was not a natural born citizen. Instead, that was a naturalization law stating the circumstances in which a person who ws not a natural born citizen could acquire a form of naturalized citizenship granting the former alien some and not all of the same rights and privileges of an actual natural born citizen.
Ted Cruz and others acquired their U.S. citizenship by the authority of the U.S. Immigration and Naturalization Act of 1952. Consequently, they are naturalized U.S. citizens at birth and not natural born citizens.
” realize these people have been “naturalizedâ€, and/or in Cruz’ case, retained dual citizenship. Right?”
Yes, in the case of Ted Cruz, he was born with a foreign allegiance to the sovereign authority of Canada, the sovereign authority of Cuba, and he retained allegiance to the foreign authority of Canada until 2014, whether he knew it or not. I any case, he is a naturalized U.S. citizen, and is therefore a naturalized U.S. citizen as required for eligibility to become POTUS.
“You know, in 1776, you tended to settle in whatever country you were for some time. Now you can hop on a plane and go to another country in a few hours. I think the citizenship factor is more important than the soil you’re born on these days.”
Many people are saying things like that, but it misses the point and purpose these kinds of laws served for so may centuries and millennia. The general purpose of these laws was to determine who had membership in what groups of people, and then went further to determine what duties and privileges were attached to having that membership in the group of people, community, society, and culture. In the days of the Roman Empire, a person who enjoyed full Roman citizenship had to be careful where the resided and whom they married, because you could find your citizenship being demoted to a lesser citizenship or be deprived of your citizenship altogether. The consequences often proved to be fatal. So, gaining and maintaining the highest level of citizenship was vital for life in the Ancient world. This was translated down through the centuries, so people were very conscious and jealous of their rights and privileges that governed who and what they could be in life. At the center of these systems of governance was the requirement for loyalty or allegiance to those person/s who were your superiors, masters, lords, monarchs, or state. Being born with allegiance to the sovereign or sovereign state without any other conflicting allegiances to a foreign sovereign resulted in a person who had a natural born allegiance only to their own parents, family,, community, and sovereign state. Over time, especially with respect to insular England, allegiance to one’s own natural born community and sovereign usually resulted in also being closely correlated with birth in the geographical region which encompassed the sovereign’s domain and state. that in turn resulted in people thinking of allegiance and loyalty in terms of being the same as birth in a place. Yet, in actual practice, it was the allegiance to the political authority which determined whether or not a person had a natural born allegiance to a particular sovereign. In modern times this confusion of the purposes of the terminology has misled the modern audience when discussing citizenship matters. Allegiance and loyalty remain vital concerns for any political entity today and for any community who wishes to defend its cultural values and its economic security. So, it is the allegiance that is important, and the place of birth is only a means of establishing the initial point of departure in determining that allegiance.
I have yet to see a Trump “argument” defining a natural born citizen. I’ve only heard him say it is not a settled issue whether someone born outside the U.S. is one. I agree - I don’t think it is a settled issue.
The RIGHT way to handle this would be for Congress to do a good-faith investigation on the original understanding, intent, and reasonable historical usage (in the absence of reasonable evidence of original understanding and intent) of the meaning of “natural born citizen” in the Constitution and make a constitutional-based law accordingly to clarify.
I happen to think a “natural born citizen” can be someone born in a foreign county to at least one parent who is a U.S. citizen.
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“...The RIGHT way to handle this would be for Congress to do a good-faith investigation...”??
Well, your wish has been granted, here’s the Congressional Research Service
report on the subject “Qualifications for President and the ‘Natural Born’ Citizenship Eligibility Requirement:
http://www.fas.org/sgp/crs/misc/R42097.pdf
It’s gotta be more than just a Congressional Research Service report or Jack Maskell, Legislative Attorney’s take. IMO, there should be actual, constitutionally-based as close as possible in good faith, bi-cameral legislation sent to the President to sign into law.
Not exactly sure what you’re saying here, but are you saying that if a diplomat to a foreign country who is from the U.S., is a U.S. citizen, marries a citizen of the foreign country, and has a child born in the foreign country, that child is not a natural born citizen of the U.S.?
Thanks for that explanation. I believe in following laws as written. Otherwise, there is no purpose to laws and the sovereignty of voters in choosing leaders to make those laws is betrayed. I guess I fell into the living, breathing Constitution trap.
“Not exactly sure what you’re saying here, but are you saying that if a diplomat to a foreign country who is from the U.S., is a U.S. citizen, marries a citizen of the foreign country, and has a child born in the foreign country, that child is not a natural born citizen of the U.S.?”
That is correct. Their child may be a U.S. citizen naturalized at birth, a naturalized U.S. citizen, and not a natural born citizen. Otherwise, the child may elect to disregard the right to claim and perfect the U.S. citizenship and instead retain only the foreign born citizenship. A natural born citizen cannot do so, because a natural born citizen is born without any possible foreign citizenship and without any possible allegiance.
Not sure I agree with you, but of course that is why there is a genuine dispute of what “natural born citizen” is. I certainly would think that the child born to a U.S. diplomat stationed overseas would be a natural born citizen. So do many others.
I would also say that you need to clarify what you mean by a newborn having “allegiances.” A newborn baby obviously is not born with any conscious “allegiance” - it’s main consciousness is a natural fear of falling and loud noises.
“I would also say that you need to clarify what you mean by a newborn having “allegiances.†A newborn baby obviously is not born with any conscious “allegiance†- it’s main consciousness is a natural fear of falling and loud noises.”
That is an utterly false statement, because it denies a fundamental cultural and legal tradition practiced in most of the world’s cultures for thousands of years. It is such a well entrenched practice and principle of Human law as to be a foundational principle in the Law of Nations. As a matter of binding case law precedent, its application is found in such precedents as Calvin’s Case 1608 and others. The whole notion that the definition of the phrase, “natural born citizen”, is a hoax used to diminish and deny an historical record replete with the usages of similar practices for determining nationality or citizenship. Examination of historical Anglo-American law for the last 500 to 900 years reveals that a person born abroad has never been a natural born citizen with the exception of those persons enjoying diplomatic immunity that shielded them from the application of the foreign sovereign’s right to demand allegiance from the child born in the foreign sovereign’s domain. This is not modern day speculation, rather it comes from the words of the jurists in their case law centuries ago. These politicians and attorney’s of today who deny and attempt to manipulate the historical definition are effectively trying to defraud today’s citizens with historical revisionism.
You actually think that a newborn baby has a conscious allegiance to a particular country? That’s a pretty bizarre idea IMO.
IMO, the idea of “natural born citizen” is as you have pointed out - the need to not be naturalized to become a citizen. I think the point of “natural born” also has to do with his status and his parentage - that he is “naturally” a U.S. citizen without any other formalities.
Are you saying that the ONLY way to be a natural born citizen is to born on U.S. soil (jus soli)?
“You actually think that a newborn baby has a conscious allegiance to a particular country? That’s a pretty bizarre idea IMO.”
Of course not, that is just you using a strawman argument. The law determines whether or not the child is born with a particular form of membership in the society and an inherent obligation for the parents and the child to comply with common law and statutory laws associated with being members of that society in the years to come subsequent to the birth of the child.
“Are you saying that the ONLY way to be a natural born citizen is to born on U.S. soil (jus soli)?”
No, I am not. I’ve already noted that the natural state of allegiance at birth is the determining factor, and the place of birth (jus soli) has come to be used as a common method of determining whether or not the allegiance to the domestic sovereign is to be applied or not applied instead of or in conjunction with the blood relationship (jus sanguini) to determine natural membership in the group. Due to the objective being a determination of the natural born allegiance of the child, those children who are born abroad while enjoying a diplomatic immunity to the application of a foreign sovereign’s jurisdiction and sovereignty, such a child acquires natural born citizenship at birth as a consequence of having a blood relationship to a father having his sole allegiance to the domestic sovereign and/or community whose existence is being perpetuated by the birth; examples being royalty, diplomats, etc. enjoying diplomatic immunity. Note, the place of birth (jus soli) alone was previously not recognized in some U.S. states as an acceptable qualification for the acquisition of state citizenship and therefore U.S. citizenship. In those cases the state required the parents to be citizens of that U.S. state or another U.S. state to qualify for citizenship in that state and derive U.S. citizenship therefrom. This kinds of circumstances are why there is so much confusion and disagreement over the discussions of citizenship and particularly regarding natural born citizenship. The people involved in those discussions typically remain ignorant about the fundamental purpose of the citizenship being used to determine allegiance and the rights, privileges, and obligations incumbent with membership in the societal group. Once the understanding of the historical origins and purpose of these citizenship traditions and laws is gained, then it is failry simple and easy to understand the inherent definition of a natural born citizen, natural born national, natural born subject, or natural born anything else.
Well you seem make a pretty reasonable argument about the purpose of the natural born citizen requirement but the concept has to be able to be codified in a way future generations could understand without too much intellectual contortion - i.e. it needs to be fairly simple and straightforward - otherwise you get this kind of disputation nonsense every few years. (I think that your “allegiance” clarification would also help.)
So I take it you’re OK with a child born to a diplomat being a natural born citizen. But what about a U.S. citizen who is travelling abroad and has a baby while abroad? If your “law” was codified, would it be easy for officials to determine whether that baby was natural born?
“the concept has to be able to be codified in a way future generations could understand without too much intellectual contortion. . . .”
Reliance upon statutory law produces a statutory citizen, which is a naturalized citizen and not a natural born citizen. That is why you do not find a definition for natural born citizen in the statutory law. As the word “nature” denotes in the in the phrase, the definition is determined by natural law arising from its historical precedents in “the common experience of mankind, without the aid or control of any particular rule of law, but simply from the course of nature and the habits of society (Bouvier, Law Dictionary, 1839, 15th 1898).” The usage of statutory law to grant or confer citizenship is the exercise of positive law.
“POSITIVE LAW. Law actually ordained or established under human sanctions, as distinguished from the law of nature, or natural law, which comprises those considerations of justice, right, and universal expediency that are announced by the voice of reason or of revelation. Municipal law chiefly, if not essentially, positive; while the law of nations has been deemed by many of the earlier writers as merely the application of the law of nature (Bouvier, Law Dictionary, 1839, 15th 1898).”
The usage of positive law is an act of naturalization.
“NATURALIZATION. The act by which an alien is made a citizen of the United States of America.
The Constitution of the United States, art. 1, s. 8, vests in congress the power to establish a rule of uniform naturalization, and various laws have been passed in pursuance of this authority (Bouvier, Law Dictionary, 1839, 15th 1898).”
Nowhere in the Constitution can there be found an article which grants the Congress an enumerated power to determine a person’s citizenship except in the case of the naturalization of aliens as U.S. citizens under Article 1 Section 8, To establish an uniform Rule of Naturalization.
In other words, reliance upon a statutory code of law is to naturalize citizenship. Natural born citizenship is governed by natural law and adjudicated by the jury.
“NATURAL LAW...These presumptions fall within the exclusive province of the jury, who are to pass on the facts. 3 Bouvier, Inst. n. 3064; Greenleaf, Ev. Sec. 44 (Bouvier, 1839, 15th, 1898).”
“But what about a U.S. citizen who is travelling abroad and has a baby while abroad?”
The alien born child of the U.S. citizen born within the allegiance and protection of the foreign sovereign is eligible to adopt or not adopt U.S. citizenship naturalized at birth. Such a U.S. citizen is naturalized at birth provided said U.S. citizen complies with any and all rules for doing so to retain such citizenship peculiar to such a naturalized citizen at birth for a child born abroad. Such a person is not and cannot by definition be a natural born citizen due to the foreign allegiance and protection acquired at birth and the subsequent and consequent usage of statutory naturalization law (positive law) to acquire U.S. citizenship.
“If your “law” was codified, would it be easy for officials to determine whether that baby was natural born?”
No, because doing so would further confuse the issue by injecting natural law into the statutory law that by definition naturalizes a person as a citizen. Such a concept amounts to an oxymoron, because you are then trying to naturalize a person who is already a natural born citizen. It is sufficient to observe that any person who acquires citizenship by the authority of a statutory law is by definition a naturalized citizen and therefore cannot be or qualify as a natural born citizen.
The history of Anglo-American law until the 20th Century shows courts using natural law as the basis of both common law and statutory law. Natural law and statutory law are not mutually exclusive.
Sounds like you want to take it on a case-by-case basis which may not be a bad idea. So, because it is a federal question, a federal court would have to take up the specific case of Ted Cruz.
One of the major problems in our country, however, is the notion that a federal court ruling, especially a SCOTUS ruling, has the power to create national law, which sweeping power cannot be found in the Constitution nor contemplated by our Founders. Keeping the federal court ruling to the specific “CASE AND CONTROVERSY” of Ted Cruz with its own unique facts and questions of law should bind only the parties involved in the case, if the decision had good-faith constitutional basis, and precedent for ONLY those subsequent CASES AND CONTROVERSIES with the same parties, facts and/or questions of law.
The perverse way things operate now, if SCOTUS took and decided Ted Cruz’s case, everyone would run away from the courtroom shouting about a new national law for “natural born citizen” - a preserve result.
On the other hand, there is no judicial or legal conflict in using natural law as a basis for legislation about what is a natural born citizen and could be effective even if the legislation itself was limited to certain required elements and left specifics open for the courts, providing some guidance for a court decision. Maybe at least the perverse “judicial legislation” could be minimized.
“The history of Anglo-American law until the 20th Century shows courts using natural law as the basis of both common law and statutory law. Natural law and statutory law are not mutually exclusive.”
Natural law is still in use today. The Supreme court cited Vattel’s Law of Nations in the District of Columbia v. Heller 2008 in support of the 2nd Amendment right to kepp and bear arms.
“Sounds like you want to take it on a case-by-case basis which may not be a bad idea. So, because it is a federal question, a federal court would have to take up the specific case of Ted Cruz.”
No, due to its inherent properties natural law is applied in case law and used as a basis for formulating statutory law without itself being codified as statutory law.
“One of the major problems in our country, however, is the notion that a federal court ruling, especially a SCOTUS ruling, has the power to create national law, which sweeping power cannot be found in the Constitution nor contemplated by our Founders. Keeping the federal court ruling to the specific “CASE AND CONTROVERSY†of Ted Cruz with its own unique facts and questions of law should bind only the parties involved in the case, if the decision had good-faith constitutional basis, and precedent for ONLY those subsequent CASES AND CONTROVERSIES with the same parties, facts and/or questions of law.”
Naturalization law is statutory law and therefore it is positive law, not natural law. Natural law cannot make a naturalized citizen, anymore than statutory law or positive law can make a natural born citizen. The terminology, naturalized at birth, indicates a child born abroad in an alien jurisdiction with an obligation for allegiance to an alien sovereign is alienated at birth from allegiance to the U.S. citizen father’s or parent’s sovereign United States, so the sovereign United States offers the parent and child the option to retroactively adopt a form of U.S. citizenship and legal fiction which is to be considered as if U.S. citizenship vested in the child at birth with some and not all of the rights and obligations of an actual citizen, or in the period of 1790 to 1795 an actual natural born citizen, despite not being an actual citizen or natural born citizen at birth. In other words, the act of naturalization is all about using a legal fiction to take a person with alien allegiance and alienated from allegiance to the United States and treating the person as if the person had been born a U.S. citizen in some but not all respects. Ted Cruz derives his citizenship only from his mother’s U.S. citizenship, due to his birth abroad with native born Canadian citizenship at birth because of his parent’s adoption of divided allegiance as Permanent Residents of Canada on the path to Canadian citizenship; so the only path to U.S. citizenship required his alien Cuban and later Canadian father and his U.S. and Canadian Permanent Resident mother or Ted Cruz born as a Canadian citizen to adopt a U.S. naturalization statute that confers U.S. citizenship on such an alien born child retroactively at birth. The statute used to do so for Ted Cruz is the U.S. Naturalization Act of 1952. Ted Cruz is a naturalized U.S. citizen who was naturalized at birth retroactively from whatever point in time the U.S. citizen mother affirmed the adoption of U.S. citizenship for the child in preference to the child’s native born Canadian citizenship and the child’s option to naturalize at birth as a Cuban citizen by using his blood relationship to his Cuban citizen father. There is no pathway by which Ted Cruz had any possibility whatsoever to acquire natural born citizenship as a U.S. citizen or natural born citizenship in any other state, due to his birth in Canada with divided allegiance to multiple sovereigns.
“The perverse way things operate now, if SCOTUS took and decided Ted Cruz’s case, everyone would run away from the courtroom shouting about a new national law for “natural born citizen†- a preserve result.”
Any effort to crate a statutory law in regard to creating natural born citizenship is an impossibility, because statutory law by the definition of statutory law and positive law can only create naturalization law. Naturalization law, statutory law, and positive law have no capacity to create natural law or a natural born citizen. Statutory law can create a legal fiction effective at birth, but it cannot create an inherent right that already exists in Nature before and without the existence of a statute. Naturalized U.S. citizens are not natural born citizens, and naturalized citizens do not meet the requirement of being natural born citizens needed to become eligible to the Office of the President of the United States.
“On the other hand, there is no judicial or legal conflict in using natural law as a basis for legislation about what is a natural born citizen and could be effective even if the legislation itself was limited to certain required elements and left specifics open for the courts, providing some guidance for a court decision. Maybe at least the perverse “judicial legislation†could be minimized.”
Yes, there is a conflict when it comes to proposing legislation to define a natural born citizen. The Constitution granted the Congress only the enumerated power “To establish an uniform Rule of Naturalization.” The power of Congress to “establish an uniform Rule of Naturalization” does not extend so far as to also grant the Congress the power to establish an uniform rule of natural born citizenship. Given the obvious fact a person naturalized as a U.S. citizen is not a natural born citizen of the U.S., any person who is a naturalized citizen of the U.S. is obviously not a natural born citizen. You cannot naturalize a person to be a U.S. citizen, when that person is already a U.S. citizen at birth without the authority of a naturalization law. Efforts to claim that a naturalization law that makes a person a U.S. citizen at birth is the same as a natural born citizen at birth fails, because a naturalization law cannot “make” any person under any circumstances a natural born citizen. The whole notion of doing so is an oxymoron. This reality is reflected in the laws regarding naturalization and the U.S. Department of State Manual administering the naturalization at birth of a child born abroad. Bottomline, Ted Cruz was born abroad (from the viewpoint of Cuba and the United States) with Canadian citizenship at birth and alien parents (for the purposes of Canada) and an alien parent (for the purposes of Cuba and the United States), which eliminates any possibility of Ted Cruz being a natural born citizen of any state or nation.
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