Ted Cruz, Originalism, and the “Natural Born Citizen” Requirement

National Review ^ | 05/08/2013 | Ed Whelan

[SeekAndFind]

In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born in 1936 in the Panama Canal Zone to parents who were American citizens, was a “natural born Citizen” ratified my point, as virtually all commentators purported to undertake an originalist inquiry.

I hadn’t seen any reason to comment on the left-wing “birther” attacks on Senator Ted Cruz’s eligibility to be president. Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.

As this Congressional Research Service report sums it up (p. 25; see also pp. 16-21), the “overwhelming evidence of historical intent, general understandings [in 18th-century America], and common law principles underlying American jurisprudence thus indicate[s] that the most reasonable interpretation of ‘natural born’ citizens would include those who are considered U.S. citizens ‘at birth’ or ‘by birth,’ … under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent.” In other words, there is strong originalist material to support the semantic signal that “natural born Citizen” identifies someone who is a citizen by virtue of the circumstances of his birth—as distinguished from someone who is naturalized later in life as a citizen. (In McCain’s case, the dispute turned on whether he was indeed an American citizen by virtue of his birth—or was instead naturalized a citizen under a law enacted when he was eleven months old. For more, see law professor Gabriel Chin’s lengthy article making the case against McCain.)

To my surprise, the New Republic’s Noam Scheiber tries to argue that Cruz’s embrace of constitutional originalism somehow means that Cruz can’t determine that he is a “natural born Citizen.” But the only evidence that Scheiber offers for this position is the assertion (which Scheiber mischaracterizes as a concession) by a non-originalist law professor in an MSNBC interview that the proposition that a person is a “natural born Citizen” if he is a citizen by virtue of his birth “isn’t really clear cut if you limit yourself to the actual wording of the Constitution” (that’s Scheiber’s paraphrase) but instead depends on “how our understandings have evolved over time.” Scheiber both overlooks the powerful originalist evidence in support of Cruz’s status as a “natural born Citizen” and misunderstands how originalist methodology operates. (In public-meaning originalism, you don’t “limit yourself to the actual wording of the Constitution,” and you don’t find yourself lost simply because the Constitution “never defines what ‘natural born’ means.” You instead look to the public meaning of the term at the time it was adopted.)

My point here isn’t to contend that the originalist evidence points entirely in one direction. As law professor Michael Ramsey observes in a post that I’ve run across while finalizing this post (a post that also takes issue with Scheiber), there are originalist scholars who don’t “find the argument entirely conclusive.” But Scheiber’s piece is a cheap whack at Cruz as well as a cheap whack at originalism.

[Jeff Winston]

It is quite clear that Judge Gaston's references to "our law" and "our constitution" are references to the statutes and Constitution of North Carolina.

Correct.

As North Carolina has a reception statute the cited sentence is true in North Carolina.

Correct.

The same can not be said for the federal government which does not incorporate common law via Constitution, reception statute, or other method.

Only partly correct.

The US Supreme Court cited Gaston as an example of what the situation was, at least, in North Carolina. But the application of the principle went beyond that state.

And Vice Chancellor Sandford in New York (1844) examined the question thoroughly in Lynch v. Clarke. He said (I'm paraphrasing here) that since the Framers of the Constitution talked about citizenship for the United States as if it meant something that everybody understood, then there must have been a national rule that everyone agreed upon, at the time of the Constitution, that determined exactly who was a citizen of the United States. It wasn't written, but it had to exist, otherwise they couldn't have meaningfully talked about citizens.

He said that if there had been variation in the rules used to determine citizenship by the thirteen original States, then there might be a bit of difficulty in determining exactly what that national rule was. But he found that there was no variation at all.

And in fact, my own independent review of the citizenship rules in the thirteen original States found exactly the same thing. Virtually every one of the 13 original States had adopted the English common law. And with it, they adopted the rule for how citizenship was determined. One or two States didn't adopt the common law, but DID adopt the exact same rule for how citizenship was determined.

Therefore, all 13 States were completely unanimous on how citizenship was determined. It was determined as it had always been, using the same rule that had applied in the English common law.

Sandford therefore said that this rule formed an American common law rule for citizenship. No, we didn't adopt the English common law in general terms at the national level. But according to Sandford, we indirectly adopted the same rule for citizenship, because that rule was the law of all 13 original States, and it therefore became the American common law rule for the entire nation.

And the US Supreme Court cited Sandford's analysis approvingly.

Meanwhile, we have the words of Alexander Hamilton as well, who told us in The Federalist that if we wanted to understand the meaning of terms in the Constitution, we should look to that nation from which our jurisprudence is derived: England.

This is a slightly different route that leads to the exact same place. This is the definition-of-words route. If you want to know what some legal term in the Constitution means, go see what it meant in the English common law. Because that was the legal terminology that the Framers used. And there are a bunch of terms in the Constitution that get their meaning from the English common law.

In fact, even the Constitutional reference to the "law of nations" CLEARLY comes from Blackstone's Commentaries on the Laws of England, and NOT from Vattel or any of his fellows. (See my profile for more commentary on that.)

In short, the reason why birther Constitutional claims have met with stiff opposition at FR is NOT because FreeRepublic is crawling with Obama supporters.

It's because they're bullcrap. I'm sorry you've bought into them, but they are about 98% without any basis in history or in law.

And no, the 2% doesn't count for much. The 2% comes from a very few folks out on the fringe (such as David Ramsay and Samuel Roberts) who either didn't know what the heck they were talking about, or had some special axe to grind, or were overruled by people of greater authority.

I'm not counting in the 2% other people whose words have been misrepresented by birthers, like John Bingham, Jacob Howard, Lyman Trumbull, or John Marshall. It's already been discussed how Marshall was talking about treatment of a US citizen living in a country with whom we were at war - NOT citizenship itself; and how nobody in the 1860s debates EVER claimed children of immigrants were anything other than born US citizens, and some of those folks clearly indicated that such people were, in fact, born citizens.

[Jeff Winston]

Prior to WKA there were two kinds of citizenship: native or natural born, and naturalized. Subsequent to WKA this is no longer true.

The court created a distinction where none had existed. It severed "native born citizen" from "natural born citizen".

Subsequent to WKA there are three kinds of citizenship: native born, natural born, and naturalized.

Simply and absolutely not true.

In fact, the Wong Court ruled that the 14th Amendment had AFFIRMED THE ANCIENT RULE OF CITIZENSHIP that had always applied in the United States.

[Rides3]

That’s covered under the Fourteenth which was specifically worded to cover these cases. Anyone born in territory that was American as of 1865 was considered to be a citizen of the United States - even if they were born under a different flag.

False.

U.S. Secretaries of State have specifically ruled otherwise.

In 1883, Secretary of State Frederick Frelinghuysen determined Ludwig Hausding, though born in the U.S., was not born a U.S. citizen because he was subject to a foreign power at birth having been born to a Saxon subject alien father.

Similarly, in 1885, Secretary of State Thomas Bayard determined Richard Greisser, though born in Ohio, was not born a U.S. citizen because Greisser's father, too, was an alien, a German subject at the time of Greisser's birth. Bayard specifically stated that Greisser was at birth 'subject to a foreign power,' therefore not "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment.

Born in the U.S. but NOT even citizens let alone natural born citizens.

Seems U.S. Secretaries of State knew A LOT more about it than you. You're trying awfully hard to float a bogus, revisionist theory.

[Rides3]

In law, precedent trumps logic.

Precisely.

In 1883, U.S. Secretary of State Frederick Frelinghuysen ruled Ludwig Hausding, though born in the U.S., was not born a U.S. citizen because he was subject to a foreign power at birth having been born to a Saxon subject transient alien father.

Similarly, in 1885, U.S. Secretary of State Thomas Bayard ruled Richard Greisser, though born in Ohio, was not born a U.S. citizen because Greisser's father, too, was a transient alien, a German subject at the time of Greisser's birth. Bayard specifically stated that Greisser was at birth 'subject to a foreign power,' therefore not "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment.

Born in the U.S. but NOT even citizens let alone natural born citizens. Because their fathers were transient aliens and NOT permanently domiciled in the U.S. as was Wong Kim Ark's father at the time of his birth.

U.S. Secretaries of State at the time knew A LOT about U.S. History, the actual law, the 14th Amendment, and who it was and was not intended to grant birthright citizenship to. It was NOT intended to or meant to grant birthright citizenship to the children of transient aliens born in the U.S.

Other laws don't apply to transient aliens, as well. For example:

"Non-citizens who are not required to register with Selective Service include men who are in the U.S. on student or visitor visas"

Source: http://www.sss.gov/FSwho.htm

[Rides3]

"It is unnecessary to reinvent the wheel here.

If that New Jersey judge had actually known any history or legal precedent, he wouldn't have reinvented the wheel which is exactly what he did in that ruling.

In 1883, U.S. Secretary of State Frederick Frelinghuysen determined Ludwig Hausding, though born in the U.S., was not born a U.S. citizen because he was subject to a foreign power at birth having been born to a Saxon subject alien father.

Similarly, in 1885, U.S. Secretary of State Thomas Bayard determined Richard Greisser, though born in Ohio, was not born a U.S. citizen because Greisser's father, too, was an alien, a German subject at the time of Greisser's birth. Bayard specifically stated that Greisser was at birth 'subject to a foreign power,' therefore not "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment.

Born in the U.S. but NOT even U.S. citizens, let alone 'natural born citizens.'

Seems U.S. Secretaries of State knew A LOT more about it than a historically ignorant NJ judge.

[Rides3]

You should re-read footnote #2 on page 6 of the ruling in Purpura and the citations from US v. Wong Kim Ark that are in the ruling.

That "ruling" makes no sense. Wong Kim Ark's father was a permanently domiciled alien in the U.S. at the time of his son's birth, and the ruling in U.S. v. Wong Kim Ark was based on that and other agreed upon facts of the case.

Obama's father WASN'T a permanently domiciled alien at the time of Obama's birth. U.S. v. Wong Kim Ark doesn't even apply to Obama.

[Rides3]

It's the same distinction made in determining who is required to register for Selective Service.

Immigrants, undocumented immigrants, and legal permanent residents are required to register.

Men who are in the U.S. on student or visitor visas, also referred to as transient aliens, aren't required to register.

Obama's father was never an immigrant, undocumented immigrant, or legal permanent resident. He was always in the U.S. on a "temporary stay" (exact DoJ quote at the time) as a foreign student.

U.S. Secretaries of State have already ruled that children born in the U.S. to such transient alien fathers weren't automatically U.S. citizens at birth because they were born 'subject to a foreign power,' and therefore not "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment.

[Rides3]

Gray misinterpreted the jurisdiction clause of the 14th Amendment applying it in a territorial rather than political sense, substituting domicile of the parents for citizenship of the parents. The result of this broadened interpretation was that the children of aliens became citizens, which is a judicial novelty contrary to law.

Yes, however, according to Gray's explicit ruling, one's alien parents had to be PERMANENTLY domiciled in the U.S. at the time of one's birth to be granted birthright U.S. citizenship.

Obama's father was never permanently domiciled in the U.S. He was always in the U.S. on only a "temporary stay" (exact DoJ quote) which expired when his studies were completed.

[Rides3]

US v. Wong Kim Ark (1898)

"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."

"The single question" asked and answered required one's parents to be permanently domiciled in the U.S. at the time of one's birth to be granted birthright U.S. citizenship.

Obama's father was never permanently domiciled in the U.S.

[Larry - Moe and Curly]

To my post #81 I received the following comments:

Germanicus: “One American born parent is good enough for me.”
“’Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; …” (Lord Coke in Calvin’s Case, 7 Coke, 6a)

Winston: “And that’s not an argument that immigrants should be eligible to be President. I wouldn’t be in favor of that change. I am in favor of having the President be born a citizen. But I certainly wouldn’t hesitate to vote for someone like Ted Cruz, as long as he has the right head on his shoulders.”
“birthers”
“Because it’s all BS”
.”…not the SLIGHTEST chance…”
“…it’s not what it has EVER meant.”
“…is mislead people.”
“…pushing this Constitutional BS are completely aware that it IS BS.”
“They just want to con people.”
“…making conservatives look like idiots.”

Rogers: “Beyond any reasonable doubt, the meaning of natural born citizen was the same as natural born subject, only changing the final descriptor.”

- - -

Let me try to summarize what it appears you believe, based on what you’ve posted:

Citizen = Subject, therefore natural born subject = natural born citizen, therefore we are subjects of the government (“…only changing the final descriptor.”).

and/or

Calling people names, ad hominem attacks and capital letters are the way to win arguments.

- - -

“Why do YOU believe Hillary Clinton would be a better President and more loyal American than Ted Cruz?!!!!!!”

I don’t and never said I did. Nice try, though. However, if the definition of natural born citizen is born in the country to two citizen parents, Hillary is eligible and Cruz is not. Whether Hillary ever becomes president is up to low information voters – I can only cancel out the vote of one of them.

Others have posted citations and analyses implying that NBC is a citizen born in the counrty to two citizen parents. You and others have posted citations and analyses implying that NBC is everything else. Obviously, this is an unsettled question or we wouldn’t be having this discussion.

I’ll go back to my original (Post 81) question: Why would any American support a position that would allow the President of the United States of America to legally be subject to a foreign power?

Mr. Rogers, I hope you did (do) well on your test (from a post a couple days ago) and are accepted by the college of your choice. Good luck.

[DiogenesLamp]

And you simply fail to understand that had Congress NOT passed that law, Bellei would never have been a Citizen at all.

There is nothing “natural” about Bellei’s citizenship.

[DiogenesLamp]

Congress rectified a statutory mistake by repealing the offending section of the statute.

Exactly. And they could just as easily have required people to stand on one leg every third Tuesday if they wanted to keep their citizenship. The point, about which you are being deliberately obtuse is that if citizenship is granted by the whim of congress, it isn't natural.

Prior to 1922, people born in foreign countries to one citizen parent were NOT CITIZENS AT ALL.

Now you guys are coming along and trying to argue that they are the same as "natural" citizens. I would say you are lying to yourselves, but I don't even think YOU believe this bullSh*t.

[DiogenesLamp]

Congress cannot make someone a NBC, but they probably can define its meaning.

And with thus contradiction, the wise man would be advised to read no further.

[DiogenesLamp]

What is your end game here?

The ones who are not idiots have some sort of stake in warping the meaning. The idiots? Well, they're idiots.

[JCBreckenridge]

Seems the constitution says something else.

[JCBreckenridge]

Speaking truth to power here.

[Rides3]

Seems the constitution says something else.

Based on what?

[DiogenesLamp]

The Constitution is sacred. Don't claim that it says BS that it doesn't say. And if you do, don't pretend to be a "conservative," because conservatives don't misrepresent the Founding Fathers and our Constitution.

And here is one of the people I mentioned in my previous post.

Tell me Jeff, what part of British law supports Subjects breaking away from the Crown? The other day I was thinking about all the animosity directed at the idea that "natural born citizen" might have come from a Swiss writer. Then I got to thinking, Where in English law or Philosophy is a notion that a group of people can throw off a Monarchy?

And then I got to thinking about the Swiss. Do you know anything about the history of the Swiss? I suspect you don't, because from what i've seen of you, your knowledge of history is horribly ignorant. (Certainly of English History)

Where else in History did a group of people throw off their rulers and form their own country? Where was the precedent for the United States of America to follow?

Here's a f***ing clue for you.

[Rides3]

Tell me Jeff, what part of British [common] law supports Subjects breaking away from the Crown?

I'd like an answer to that, as well.

[Mr Rogers]

“Others have posted citations and analyses implying that NBC is a citizen born in the counrty to two citizen parents. You and others have posted citations and analyses implying that NBC is everything else. Obviously, this is an unsettled question or we wouldn’t be having this discussion.”

Incorrect. This IS a settled question. All 50 states, including very conservative ones, consider it settled. All 535 members of Congress consider it settled. Every court considers it settled. No District Attorney anywhere in the US has objected. The US Supreme Court has rejected without comment every birther case. Sarah Palin and Mark Levin consider it settled law.

There is no legal argument about needing two citizen parents. None. At this point, every birther lawsuit should be fined for being frivolous. There simply is no legal basis for claiming a requirement to have two citizen parents to run for President.

Ted Cruz DOES fall in a gray area. To the best of my knowledge, there has never been a case to determine if someone like Ted Cruz is eligible. If he does try to run, it may well spark a case that has worthwhile arguments on both sides.

“Why would any American support a position that would allow the President of the United States of America to legally be subject to a foreign power?”

If Ted Cruz was elected President of the USA, no foreign power would claim his obedience. That is silly. Nor does Obama owe allegiance to either Kenya or the UK. He certainly has shown no loyalty to the UK, or even any fondness to the UK. He treats the UK with contempt.

“Mr. Rogers, I hope you did (do) well on your test (from a post a couple days ago) and are accepted by the college of your choice. Good luck.”

I’m sure I did fine. I’m 55, have my BS in Biology and an MBA, retired from the military after 25 years, and am taking classes because I’m tired of being retired. I had a 99% average going into the final, so I’m not sweating the results. The test last night was for legal ethics. It was a good class - well taught and thought provoking.