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.

[DiogenesLamp]

You should actually READ Lynch v. Clarke, by the way. And you should actually READ US v. Wong Kim Ark.

"Plessy" Kim Ark from the Discredited Supreme Court.

[Jeff Winston]

That it is the 1776 version of the State constitution of Pennsylvania is not the relevant part. That it was created by James Wilson and Benjamin Franklin (who signed it at the bottom) and that it specifically cites the son of a citizen (twice) as a requirement, is.

You'll have to show me where it says that.

[DiogenesLamp]

You'll have to show me where it says that.

Would it do any good if I did?

[x]

The "Our nation is based on English Principles of Law" theory collides with the reality of the fact that it was a direct contradiction of English law for us to even exist. That there was nothing like what we did anywhere in English law is also readily apparent.

England had at least two revolutions in the 17th century, and when our revolution started the colonists were claiming the rights of Englishmen, not independence from the crown. The United Kingdom at various times had been something of a confederation, as the name suggests. Scotland had an independent parliament until 1707, Ireland until 1801.

To be sure Switzerland was an example of a confederation of republics, and the founders knew of it. But it was more like a looser confederation of independent cantons when they were around. A federated republic like our own was slow to develop. John Adams certainly did study the Swiss cantonal republics, but the founders also had the example of Ancient Greek and Renaissance Italian republics to draw on.

I'm not sure about the details of Swiss history, but reverence for English common law went deep in the colonies and later in the new nation. Common law was something that evolved over time through cases. Thus it wasn't as statist as Continental civil law. The founders were largely trained in the common law and built their case against Parliament and later the king in the tradition of common law principles.

[Nero Germanicus]

No one is saying that courts are infallible. It’s just a fact that their rulings stand until they are overturned or rendered moot. This is not rocket science.
The first presidential eligibility/natural born citizen appeal in the current era was decided in 2009. No ruling since then has invalidated the precedent established by US v. Wong Kim Ark. If the Wong court was “tainted” it wouldn’t be cited in more than 1000 subsequent cases. I would use the word “landmark” rather than “tainted.”
If any members of Congress cared, they could introduce legislation to render Wong Kim Ark moot. Congress doesn’t seem to care.
Where is the bill to require two US citizen parents in order to be considered as a natural born citizen? Introducing such legislation and holding hearings on the issue could at the very least bring additional media attention to the issue.

[DiogenesLamp]

There is no dispute that the practices and usage of common law was availed in the Colonies and what subsequently became the US. We did however dispense with certain aspects of it completely. (Primogeniture, Corruption of blood, etc.) The Common Law was useful in the every day running of a community, but when it came to matters of state, it was completely inadequate to our system of governance.

Many of the principles of common law are simply incompatible with the Principles upon which we were founded, and most central to the point is the notion that we owe allegiance for being born on the King's land. As has been mentioned before, this is a Feudal left-over, and ill suited to a nation such as ours.

Now you cite Ireland and Scotland, but having an independent Parliament was more akin to the status of a State, and not that of a separate nation. They all still owed a permanent allegiance to the King.

And yes, you are correct, that when the discontent first began, the Colonies protested that they weren't getting treated as they thought befit their status as Englishmen, but over time the sentiment for equality gave way to a desire for Independence. The political philosophy changed, and people such as James Otis and Samuel Adams looked elsewhere for their philosophical ideas.

Oddly enough, an interesting book just happened to have been circulating among the colonies about this time.

(1764)

And the rest, is history.

[Jeff Winston]

Ha. I've found it.

Wow. Just when I think the well of birther twistings and other BS has to be about dry, you come up with something new. Well, points for BS creativity.

First, let's note that you've shifted from James Falconer Wilson (post-Civil-War era), because you got your clock cleaned there, to James Wilson, foreign-born Framer from the Founding era.

You are like a snake in the fire. You are burned over here, so you twist and squirm and thrash over into a different part of the fire.

The Pennsylvania Constitution of 1776:

SECT. 5. The freemen of this commonwealth and their sons shall be trained and armed for its defence under such regulations, restrictions, and exceptions as the general assembly shall by law direct, preserving always to the people the right of choosing their colonels and all commissioned officers under that rank, in such manner and as often as by the said laws shall be directed. SECT. 6. Every freemen of the full age of twenty-one years, having resided in this state for the space of one whole year next before the day of election for representatives, and paid public taxes during that time, shall enjoy the right of an elector: Provided always, that sons of freeholders of the age of twenty one years shall be intitled to vote although they have not paid taxes.

So the freemen of Pennsylania (and their sons) had military obligations, and the right to vote.

Virtually no one ever regarded having the right to vote as a requirement for "citizenship." The US Supreme Court certainly didn't. They said that women and children born were both citizens, even though neither possessed the right to vote.

But James Wilson, who was a Framer and one of our first Supreme Court Justices, oddly, used the word "citizen" to mean someone who was in a position to exercise the right of political engagement:

“Generally speaking,” says the great political authority, Aristotle,* “a citizen is one partaking equally of power and of subordination.”

A citizen then—to draw his description as one of the people—I deem him, who acts a personal or a represented part in the legislation of his country. He has other rights; but his legislative I consider as his characteristick right. In this view, a citizen of the United States is he, who is a citizen of at least some one state in the Union: for the members of the house of representatives in the national legislature are chosen, in each state, by electors, who, in that state, have the qualifications requisite for electors of the most numerous branch of the state legislature. In this view, a citizen of Pennsylvania is he, who has resided in the state two years; and, within that time, has paid a state or county tax: or he is between the ages of twenty one and twenty two years, and the son of a citizen.

Oddly, Wilson says that a "citizen" is someone who has resided in the State for two years AND paid a state or county tax.

Well, what about those who had no cause to pay a tax? Weren't they citizens of Pennsylvania?

According to Wilson, they weren't.

What about the women? They had no part in the political process. And their husbands paid the taxes. According to Wilson, wives weren't citizens of Pennsylvania.

And what about everyone under age 21? They weren't citizens, either.

So according to "this view" of a citizen, people who were born in Pennsylvania, had lived there their entire lives, and were 20 years old, weren't citizens of Pennsylvania.

And women, most of them at least, were NEVER citizens of the State.

But note what's NOT mentioned here: you certainly didn't have to have citizen parents in order to be a "citizen."

In fact, it looks like you didn't even have to APPLY.

You just had to move into the State, live there for 2 years, and pay some taxes.

So you could be born in Russia of Russian parents, move to PA, live there for 2 years, pay taxes, and you were a citizen.

In any event, it is obvious that Wilson is using the word "citizen" here as an equivalent for "eligible participant in the political process." Children are not citizens, whatever their place of birth and parentage. Women are not citizens, whatever their place of birth and parentage.

And of course, nowhere does he say that anyone has to be born of citizen parents in order to be a natural born citizen.

So once, again: Another truckload of bullcrap.

We've got enough now from you to fertilize a whole farm.

[Nero Germanicus]

It helps if you want to know who qualifies as a “Citizen of the United States At Birth” who happens to have been born overseas.

[DiogenesLamp]

No one is saying that courts are infallible.

Then why do all your arguments keep coming back to the courts? If they make horribly bad mistakes, why should we want to accept their judgement on anything as opposed to looking at the evidence and reasoning it out for ourselves?

In science, validity is based on repeatability. A single experimental contradiction can destroy an entire theory, no matter how prestigious is the Scientists espousing it. In the legal profession? It is series of quasi logical arguments that often render utterly ridiculous results, such as the 14th amendment legalizes abortion, or that a Farmer can't grow his own wheat to feed his own cows.

It’s just a fact that their rulings stand until they are overturned or rendered moot.

But this means nothing to someone who is vying for objective truth. Dred Scot was the law until it wasn't. Plessy was the law until it wasn't. Betting on the continuance of "law by opinion" is a poor way to pursue the truth.

This is not rocket science.

Of that you can be sure! The legal system has more of a resemblance to retards playing a never ending game of musical chairs. Something based on science yields predictable results with practical applications. The Courts? One piece of hilarity after another.

Or I should say, it would be funny were it not so tragic. I have little respect for the courts and their methods (exclusionary principle?) and have had for a long time. I perceive the nation will burn within my lifetime, and when it is begun, perhaps we will be able to eradicate the stupid bits of the legal system with the rest of the chaff.

[Ha Ha Thats Very Logical]

That Switzerland was both the actual and philosophical model for the United States becomes more apparent the more I look at it....Keep telling us that we owe our founding Principles to the English.

You like old books. Here's one I just found, Sources 
Of The 
Constitution Of The United States Considered In Relation To Colonial And English History by C. Ellis Stevens, 1894. The author was apparently a Protestant Episcopal clergyman of New York City. He writes,

it is important to bear in mind, that the Revolution disarranged but slightly the fabric of government in the individual colonies. "It did not," Webster has affirmed, "subvert the local laws and local legislation." It "did not," Chancellor Kent has said, "involve in it any abolition of the common law."
...
"No one familiar with the common law of England," remarks Mr. Justice Miller, "can read the Constitution of the United States without observing the great desire of the Convention which framed that instrument to make it conform as far as possible with that law.... To look at the general outlines organizing the new government into its various branches, there is but little departure from that of the English government. The President, the Senate, and the House of Representatives correspond in essential features with the King, Lords, and Commons of Great Britain. And although there was a necessity arising from the bringing together of thirteen different States into one general government, with a recognition of many of the most important powers of government left in the States themselves, to vary in some respects the powers which were confided to the President, the Senate, and the House of Representatives from those which had by immemorial usage come to be the powers of the King, the House of Lords, and the House of Commons of Great Britain, yet the analogy is very close."

[Ha Ha Thats Very Logical]

I mentioned this to Jeff once, but I’m not sure if you’re aware that Rides3 also thinks WKA applies only to people of Chinese descent, since that is also part of the final statement. I don’t know if Ray76 believes the same thing.

[Mr Rogers]

Saying we used English common law for the language of our own law, or using it, as Scalia did last year, it NOT the same as saying we are still English subjects.

But anyone who thinks we are more Swiss than English in our heritage and ideas is....well, stupid.

Just as is someone who says if one case is overturned, then all cases were wrongly decided. Over a hundred Supreme Court cases have been overturned. Do you know why? Would you care to explain why the US Supreme Court sometimes reverses previous decisions? Perhaps you can research Swiss law, and tell me the answer.

[Jeff Winston]

In this view, a citizen of Pennsylvania is he, who has resided in the state two years; and, within that time, has paid a state or county tax...

Oh! And he has to have paid a state or county tax WITHIN THE LAST TWO YEARS.

Doesn't matter that he paid taxes 5 years ago. He's no longer a citizen now.

Well, that might be true in the sense of "citizen" used as a synonym for "eligible participant in the political process." But it's not true of "citizen" in the sense it is normally ever used, that of a MEMBER OF THE SOCIETY.

What a load of moo poo.

[Jeff Winston]

Would you care to explain why the US Supreme Court sometimes reverses previous decisions? Perhaps you can research Swiss law, and tell me the answer.

ROTFL!

[DiogenesLamp]

Virtually no one ever regarded having the right to vote as a requirement for "citizenship."

Voting is a further right of possessing Citizenship. Not all citizens could exercise it. Minor couldn't vote, though a citizen.

Well, what about those who had no cause to pay a tax? Weren't they citizens of Pennsylvania?

According to Wilson, they weren't.

What are you going on about? The salient point is that he specifically identifies the Sons of freeholders as being permitted to vote, and cites no reason beyond this for them to be exercising the privileges of citizens.

You just had to move into the State, live there for 2 years, and pay some taxes.

Of course you are going to go off into the irrelevant weeds. Obviously the paying of taxes was regarded as tantamount to a form of naturalization. It was 1776 and a first attempt for these people. Give them a break if the document lacks polish.

In any event, it is obvious that Wilson is using the word "citizen" here as an equivalent for "eligible participant in the political process." Children are not citizens, whatever their place of birth and parentage. Women are not citizens, whatever their place of birth and parentage.

And now who is writhing like a snake in the fire?

So once, again: Another truckload of bullcrap.

Well, the part you wrote, of course. The Salient point is that there is no need to add "Son of freeholders " unless it speaks to their intent. Obviously It wasn't necessary under YOUR theory.

[DiogenesLamp]

It helps if you want to know who qualifies as a “Citizen of the United States At Birth” who happens to have been born overseas.

Congress set the time "at birth". There is no reason why they couldn't have set the time at "six months after birth" if they had so desired. How about a parable?

There once was a wise old man, known throughout the community for his insight and wisdom. One day a foolish young man sought to fool the wise old man with a trick. He searched around until he found a little bird. He then thought to himself, "ill take it to the old man and ask him if the bird is dead or alive. If he says "alive", i'll wring it's neck before presenting it to him... if he says "dead", ill present it to him unharmed.

So the young man went to the wise old ,man with a bird in his hands held behind his back. He says "What do I have in my hands, old man?" The old man, says "You have a little bird in your hands."

"Ah, but is the little bird alive or dead?" Asked the youth.

The old man replied, "Young man, the bird is *in* your hands."

The Status of statutory citizens are *IN* the hands of Congress. You might think they have done something sensible, but there is no requirement for them to have done so.

[Jeff Winston]

Of course you are going to go off into the irrelevant weeds. Obviously the paying of taxes was regarded as tantamount to a form of naturalization. It was 1776 and a first attempt for these people. Give them a break if the document lacks polish.

No irrelevant weeds here, except for the fact that you posted this passage and tried to claim it supported your argument in the first place.

Wilson said clearly that, in the view and context of "citizenship" he was talking about - which was an equivalent to "having the rights to participate in the political process" - people who hadn't paid taxes in the past two years weren't citizens of Pennsylvania.

It didn't matter whether they were born there, of citizen parents or non-citizen parents. If they had been born in Pennsylvania of citizen parents whose grandparents had been born in the same town, lived in that Pennsylvania town their entire lives, and paid taxes 5 years ago, but hadn't paid taxes in the past 2 years, THEY WEREN'T "CITIZENS" (IN THE SENSE IN WHICH HE WAS USING THE WORD) OF PENNSYLVANIA.

Neither were women, or children, or sons of citizens. Unless those SONS (no daughters!) were between 21 and 22 years of age.

But this isn't what ANYBODY means by "citizen" today.

So obviously Wilson was not talking about "citizens" in any sense in which we really know them. When he used "citizen" in that passage, it wasn't a synonym for "a member of the society." It was a synonym for "someone who had the full right to participate in the Pennsylvania political process."

So are you now claiming that you have to live in a State for 2 years, and have to be male, and have to have paid taxes within the past two years, in order to be a citizen? Or else have a parent who hadn't necessarily gone through any naturalization process, but who had lived in the State for the past 2 years, and paid taxes, and yourself be between 21 and 22 years of age?

Because that's what Wilson said the requirements for "citizen" were.

[edge919]

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.

If you think you have something compelling, YOU need to post it and not make other people go on a goose chase. So far, nothing you've posted is based on any stated legal precedent. Why would I believe this to be any different??

[Nero Germanicus]

Ok, fair enough.
Here’s the link:
http://www.scribd.com/doc/88936737/2012-04-10-NJ-Purpura-Moran-v-Obama-Initial-Decision-of-ALJ-Masin-Apuzzo

Bottom of page 6 is the footnote.

[Nero Germanicus]

Who or what institution(s?) is it that you think should make the determination on who qualifies under Article 2, Section 1?
I continually refer to the courts because since March 14, 2008, 207 civil lawsuits have been filed challenging the eligibility of 2008 & 2012 presidential candidates under the provisions of Article 2, Section 1.

That March 14, 2008 filing challenged Senator John McCain’s natural born citizen status (Hollander v. McCain).

If eligibility challengers were petitioning other institutions for redress of grievances then I would be discussing those other institutions.