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.

[Ray76]

And WKA was NOT HELD TO BE A NATURAL BORN CITIZEN.

[Mr Rogers]

“You did lie. The question before the Supreme Court was whether WKA was a citizen. That’s a very different question that what you claimed.”

Reread post 166:

---

To: Mr Rogers
The government argued in the case that WKA was not a NBC [from Mr Rogers]

No, the government argued that WKA was not a U.S. citizen.

Why do you feel the need to lie about that, Mr. Rogers?
166 posted on Friday, May 10, 2013 10:43:58 AM by Rides3

---

What I claimed was, as you quoted, that the government argued that WKA was not a NBC. They did so by arguing that English common law was not applicable to the US Constitution, and that International Law should be applied after over 100 years. And yes, the court rejected their argument. And I’ve posted images of the argument so that anyone can see I’m telling the truth.

[DiogenesLamp]

True to a good extent, but it wouldn't have changed the result if they hadn't.

Do I have to remind you what John Bingham said...Several times in fact? One would think it would be etched into your brain by this point.

Which is to say, they thoroughly examined the history of the term.

Yeah? Well then how did they miss this?

Or this.

Or various other pieces of evidence.

Damn straight. Their decision was in accordance with all prior law and virtually every real legal authority who had ever spoken on the matter.

Are you talking about Plessy v Ferguson? In that case you are correct, but the ignored prior law when it came to Wong.

[Mr Rogers]

“So how did the “common law” of England/Great Britain come to be incorporated into United States law so that Gray could use it? “

If you could read, Gray would give you the answer:

“In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:

There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

[DiogenesLamp]

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

Nor should he have even been here in the first place. He lied on his Visa application.

[Ray76]

So because a judge said so. And from where does this authority stem? From his own arrogation.

Jefferson letter to Edmund Randolph, August 18, 1799

Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp act, &c. &c. have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitively beyond their power to adopt.

Madison letter to Jefferson, Jan 18, 1800

Madison states that admitting the common law as legal federal law of the United States “would confer on the judicial department a discretion little short of a legislative power” since federal courts would “decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States” and thus would “erect them [judges] into legislators”

Instructions To Virginia Senators, January 11, 1800.

The House proceeded to consider the instructions from the General Assembly of Virginia, to STEPHENS THOMPSON MASON and WILSON GARY NICHOLAS, senators from the state of Virginia, in the Congress of the United States. The instructions are as follows:

The General Assembly of the commonwealth of Virginia, though it entertains no doubt of your punctual performance of your duty, or of your faithful adherence to the great principles of constitutional law, and national policy, deems it incumbent on it to communicate its opinions, formed after the most mature deliberation, on certain subjects essentially connected, as it solemnly believes, with the dearest rights, and most important interests of the people.

...The General Assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent, whilst a doctrine has been publicly advanced, novel in its principle and tremendous in its consequences: That the common law of England is in force under the government of the United States.

...Deeply impressed with these opinions, the general assembly of Virginia instruct the senators, and request the representatives from this State, in Congress, to use their best efforts —

To oppose the passing of any law, founded on, or recognising the, principle lately advanced, ‘that the common law of England is in force under the government of the United States,’ excepting from such opposition such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; .... and excepting, also, such other parts thereof as may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated.”

There you have it - “Our dearest rights and our most important interests are threatened by the idea that the common law of England is in force under the government of the United States.

This audacious, barefaced and sweeping pretension to a system of law for the United States, a system not adopted by the legislature, a system beyond judicial power to adopt, would make judges into legislators since they would decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States.”

[DiogenesLamp]

How can you be so stupid as to believe your side has a winning argument, when the argument was made and rejected over 100 years ago. Another case tried to raise the same arguments in the 1940s, and was rejected.

I guess you missed the part where I pointed out that the Wong court is the Plessy court. In case you are unfamiliar with the Plessy ruling, I advice you to look it up. Once you learn what it is, I want you to come back here and tell me how infallible was the Wong Court, and how much we should fall all over ourselves accepting their legal opinions.

[DiogenesLamp]

he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

Except the part where it says we don't have to be a "subject" of a King. That's not in English law anywhere, it is in Swiss Law, and Swiss Philosophy.

It is the Principles of Swiss law that justify our Independence. English Law doesn't allow it. Claiming Subjects by birth on the Kings land is a principle which is incompatible with the United States. The Swiss led where the United States Followed.

You just can't get over your "Expert" worship long enough to see how incompatible is English Common Law with American freedom.

[Larry - Moe and Curly]

“I was speaking of the intent of those who wrote the Constitution. 40% of those who signed the Constitution were in that first Congress. That a later Congress deleted the words “natural born” doesn’t change the intent of our first Congress.”

No you weren’t. You were trying to deceive.

That’s an impressive list of citations. You’ve either been working on this a very long time, or that’s quite a crew working at DU, HP or Fogbow for you to look this stuff up. Unfortunately, it will take me a while to reasearch to see how much is “twisting historical quotes”, etc.

Something caused Congress to make the natural born change between NA1790 and NA1795. Can you have your research team find out what that was for me? I appreciate it. I’ll look it up, but your team can probably get it faster.

That may have been the “first congress” but it appears they recognized they had made a mistake. Maybe they didn’t read the whole thing the first time and just “deemed” it passed.

Again, Superseded by NA 1795. Congress didn’t “change” it, they corrected it.

[DiogenesLamp]

You will quickly realize that Jeff’s wall of citations don’t actually support his claim. He puts everything in there but the kitchen sink, all mixed together in a most confusing fashion. Among his cites are people who do indeed support his theory, but many if not most, do not, but he counts them as supporting his theory anyways.

[Nero Germanicus]

I plead guilty as charged. It’s a side benefit that what you call “my desired political outcome” is in accordance with the law of the land.

Acquisition of U.S. Citizenship by a Child Born Abroad
Birth Abroad to One Citizen and One Alien Parent in Wedlock

“A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child’s birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be genetically related to the child to transmit U.S. citizenship.”

Senator Cruz was born in 1970 so his Delaware born mother must have lived in the US for ten years with five of those years after the age of 14 in order to transmit US citizenship at birth to her son.

[Nero Germanicus]

Wong Kim Ark was held to be a Citizen of the United States at Birth..same thing.
From the government’s brief:
“For the most persuasive reasons we have refused citizenship to Chinese subjects; and yet, as to their offspring, who are just as obnoxious, and to whom the same reasons for exclusion apply with equal force, we are told that we must accept them as fellow-citizens, and that, too, because of the mere accident of birth. There certainly should be some honor and dignity in American citizenship that would be sacred from the foul and corrupting taint of a debasing alienage.

Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth? If so, then verily there has been a most degenerative departure from the patriotic ideals of our forefathers; and surely in that case American citizenship is not worth having.”

http://librarysource.uchastings.edu/library/research/special-collections/wong-kim-ark/AppellantsBrief.pdf The Government (Appellant) Brief: US v Wong Kim Ark (page 18 of 20 of the pdf) Page 34 of the original.

[DiogenesLamp]

Senator Cruz was born in 1970 so his Delaware born mother must have lived in the US for ten years with five of those years after the age of 14 in order to transmit US citizenship at birth to her son.

Thank God Congress didn't require one more year than his mother had in residence, else Cruz wouldn't be a citizen!

It was a close call. Cruz almost missed being a "natural citizen" because of Congress. Fortunately they picked the a number of years of residency with which Eleanor Darragh could comply.

I suppose congress could have made an exception for any person who was born to a mother who's name started with an "E", but that would be pushing the "natural citizen" thing too far. We don't want to get silly in our ever flexible definition of "natural citizen", do we?

I wonder what "natural citizen" is going to mean in the future?

[Jeff Winston]

And another wall of text that nobody is going to bother reading.

Only those who want to know what our Founding Generation and early authorities actually said.

[Jeff Winston]

So how did the "common law" of England/Great Britain come to be incorporated into United States law so that Gray could use it?

1) See the explanation of VICE CHANCELLOR LEWIS SANDFORD, who (unlike you) was a judge who exhaustively analyzed the law, that rationally, there had to be an unwritten national law specifying who was and was not a citizen, and that since the rule was the same for every single State in the union, that unanimous rule was obviously the rule for the entire nation.

2) See Alexander Hamilton, who told us that in order to understand the legal terms written in the Constitution, we would find their meaning in the English common law. Therefore, "natural born" in the Constitution meant what "natural born" had always meant in the common law.

There are two different paths to the exact same conclusion. There is no other viable path to any different conclusion. There's only a bunch of bull**** speculation and nonsense claim that we supposedly used the idea of some Swiss philosopher, who didn't even use the term "natural born citizen" in the passage cited, and who was never quoted on citizenship by ANY of the Founders.

[Jeff Winston]

You are an idiot.

Birthers are idiots.

But I repeat myself.

[Ray76]

Section 301(g) of the Immigration and NATURALIZATION Act

Does that help?

[Ray76]

STATE LAW IS NOT RELEVANT.

[Jeff Winston]

Do I have to remind you what John Bingham said...Several times in fact? One would think it would be etched into your brain by this point.

No. I'm quite well aware that Bingham used the words "subject to no foreign sovereignty."

I'm also quite well aware that he never once stated those words included the children of non-citizen immigrants, was present in the House when James Falconer Wilson quoted Rawle saying that the children born in the United States of alien parents were themselves natural born citizens, and "entitled to all the rights and privileges appertaining to that capacity," and didn't raise the slightest objection, and himself equated "natural born citizen" and "born a citizen." And that he also later DROPPED the words "not subject to any foreign sovereignty" in favor of "subject to the jurisdiction of the United States."

So all the evidence says that what Bingham MEANT by "subject to no foreign sovereignty" absolutely did not include the children of resident aliens.

You know this, of course, because we've been over it many times. You just want to continue to propagandize BS. You're a troll.

Yeah? Well then how did they miss this?

They missed Samuel Roberts because he was insignificant as a little State legal authority and completely contradicted by far more authoritative national authorities such as Rawle and Tucker, and they missed the Pennsylvania Constitution because it had nothing to say on the matter.

So once again, you spin total bull****. Do you ever get tired of doing so? Apparently not.

[Jeff Winston]

STATE LAW IS NOT RELEVANT.

HAHAHAHAHA!

You'd better tell that to your idiot compatriot DiogenesLamp, because he's posting copies of the Pennsylvania State Constitution.