Posted on 05/08/2013 8:03:24 AM PDT by 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.
"Natural born" is the antonym of "naturalized." It means someone who became a citizen at birth, as opposed to one who was naturalized later.
Your logic fails the test of simple critical thought, so I’ll assume a retort is useless.
In law, precedent trumps logic.
This isn’t law, it’s the definition of a phrase. Whatever the phrase “natural-born” meant when it was written down in the Constitution, is exactly what it means today. You won’t search for that meaning because the search, in your mind, would be an admission of failure. Hmmm, maybe you aren’t... Well, just google: bouviers... definition... natural... born... citizen... The truth is our goal, not brownie points for your ego.
United States Citizens at Birth (INA 301 and 309)
A. General Requirements for Acquisition of Citizenship at Birth
A person born in the United States who is subject to the jurisdiction of the United States is a U.S. citizen at birth, to include a person born to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.[1]
In general, a person born outside of the United States may acquire citizenship at birth if:
One parent is a U.S. citizen; and
The U.S. citizen parent meets certain residence or physical presence requirements in the United States or an outlying possession prior to the person’s birth in accordance with the pertinent provision.[2]
Until the Act of October 10, 1978, persons who had acquired U.S. citizenship through birth outside of the United States to one U.S. citizen parent had to meet certain physical presence requirements to retain their citizenship. This legislation eliminated retention requirements for persons who were born after October 10, 1952. There may be cases where a person who was born before that date, and therefore subject to the retention requirements, may have failed to retain citizenship.[3]
An officer should determine whether a person acquired citizenship at birth by referring to the applicable statutory provisions and conditions that existed at the time of the person’s birth. These provisions have been modified extensively over the years.[4] The following sections provide the current law.
B. Child Born in Wedlock[5]
1. Child of Two U.S. Citizen Parents[6]
A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:
Both of the child’s parents are U.S. citizens; and
At least one parent had resided in the United States or one of its outlying possessions.
2. Child of U.S. Citizen Parent and U.S. National[7]
A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:
One parent is a U.S. citizen and the other parent is a U.S. national; and
The U.S. citizen parent was physically present in the United States or one of its outlying possessions for a continuous period of at least one year.
3. Child of U.S. Citizen Parent and Foreign National Parent[8]
A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:
One parent is a foreign national and the other parent is a U.S. citizen; and
The U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age.
Time abroad counts as physical presence in the United States if the time abroad was:
As a member of the U.S. armed forces in honorable status;
Under the employment of the U.S. government or other qualifying organizations; or
As a dependent unmarried son or daughter of such persons.
4. Child of a U.S. Citizen Mother and Foreign National Father[9]
A child born outside of the United States and its outlying possessions acquires citizenship at birth if:
The child was born before noon (Eastern Standard Time) May 24, 1934;
The child’s father is a foreign national;
The child’s mother was a U.S. citizen at the time of the child’s birth; and
The child’s U.S. citizen mother resided in the United States prior to the child’s birth.
C. Child Born Out of Wedlock[10]
Child of a U.S. Citizen Father
The provisions listed above[11] for a child born in wedlock apply to a child born out of wedlock outside of the United States claiming citizenship through a U.S. citizen father if:
A blood relationship between the child and the father is established by clear and convincing evidence;
The child’s father was a U.S. citizen at the time of the child’s birth;
The child’s father (unless deceased) has agreed in writing to provide financial support for the child until the child reaches 18 years of age; and
One of the following criteria is met before the child reaches 18 years of age:
The child is legitimated under the law of his or her residence or domicile;
The father acknowledges in writing and under oath the paternity of the child; or
The paternity of the child is established by adjudication of a competent court.
In addition, the residence or physical presence requirements contained in the relevant paragraph of INA 301 continue to apply to children born out of wedlock claiming citizenship through their fathers.
Child of a U.S. Citizen Mother
A child born out of wedlock outside of the United States and its outlying possessions acquires citizenship at birth if:
The child was born after December 23, 1952;
The child’s mother was a U.S. citizen at the time of the child’s birth; and
The child’s U.S. citizen mother was physically present in the United States or outlying possession for one continuous year prior to the child’s birth.[12]
D. Application for Certificate of Citizenship (Form N-600)
A person born abroad who acquires U.S. citizenship at birth is not required to file an Application for Certificate of Citizenship (Form N-600). A person who seeks documentation of such status, however, must submit an application to obtain a Certificate of Citizenship from USCIS. A person may also apply for a U.S. Passport with the Department of State to serve as evidence of his or her U.S. citizenship.[13]
A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on his or her own behalf. If the application is for a child who has not reached 18 years of age, the child’s U.S. citizen parent or legal guardian must submit the application.[14]
USCIS will issue a proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship is approved and the person takes the Oath of Allegiance, if required to do so.[15]
E. Citizenship Interview and Waiver
In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the U.S. citizen parent or legal guardian if the application is filed on behalf of a child under 18 years of age.[16] USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant’s eligibility is already included in USCIS administrative records, or if the application is accompanied by one of the following:
Department of State Form FS-240 (Consular Report of Birth Abroad of a U.S. Citizen);
Applicant’s unexpired U.S. Passport issued initially for a full five or ten-year period; or
Certificate of Naturalization of the applicant’s parent or parents.[17]
F. Decision and Oath of Allegiance
1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of Age
If an officer approves the Application for Certificate of Citizenship, USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship.[18]
However, the INA permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning.[19] USCIS has determined that children under the age of 14 are generally unable to understand the meaning of the oath.
Accordingly, USCIS waives the oath requirement for a child younger than 14 years of age. If USCIS waives the oath requirement, USCIS issues a Certificate of Citizenship after the officer approves the application.
2. Denial of Application
If an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice.[20] An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).
1. [^]
See INA 301(a) and INA 301(b). Children of certain diplomats who are born in the United States are not U.S. citizens at birth because they are not subject to the jurisdiction of the United States. See 8 CFR 101.3.
2. [^]
Any time spent abroad in the U.S. armed forces or other qualifying organizations counts towards that physical presence requirement. See INA 301(g).
3. [^]
The Act of October 10, 1978, Pub. L. 95-432, repealed the retention requirements of former INA 301(b). The amending legislation was prospective only and did not restore citizenship to anyone who, prior to its enactment, had lost citizenship for failing to meet the retention requirements.
Let's get back to this:
So if *I* had failed to report for induction, I would have lost my citizenship?
You seem to have left it on the table for some reason.
Government bureaucrats are charged with implementing laws passed by Congress and laws can be challenged via the judicial branch.
I made my comment about Rogers v. Bellei. I don’t anything else to say on that tangent.
The actual law of the land that governs Senator Cruz’s birth circumstances seems much more relevant.
I must have missed it. I'll go back through the messages and see if I can find anything where you addressed the point.
I don’t anything else to say on that tangent.
Tangent? It's ground zero to the point. Cruz Share's Bellei's circumstances of birth. According to you, Bellei is a "natural born citizen" who just happened to have his citizenship stripped away because he didn't report for induction.
I'm very interested in understanding how this works. It seems to me, all we have to do is threaten Cruz with the Draft, and he will lose his citizenship or something.
Wow, there’s nothing “natural” in citing convoluted statutes on immigration and nationality that fall under the title of “Aliens and Nationality” in the U.S. Code. You’ve just helped prove why Cruz would not be a natural-born citizen.
So, being born outside of Britain, you were still British.
If you were born on a boat in international waters, were you still British?
If you were born while your boat was docked in France, were you still British?
The issue of course isn’t whether you were British, it is whether you were considered “natural-born”. We know that there is a birthright citizenship in many countries, and we know that America has long counted as citizens the children of citizens whereever they were born, which allowed people to claim dual citizenship if they chose.
The question is whether, when the founders wrote that clause, they meant to exclude children born to american citizens who happened to be on holiday when they gave birth. Of course, being on Holiday wasn’t nearly as common to them as it is to us. You can easily give birth to a child in Japan, and have the child back in your home in Alabama in a week.
Natural-born citizenship inherently precludes dual citizenship. The Supreme Court affirmed this in Shanks v. Dupont when it said that under the Treaty of 1783, you were either a natural-born subject or a natural-born citizen, including all born in the United States, depending on whether your parents adhered to the crown or whether they adhered to U.S. allegiance. You can’t be both.
There is no distinction in law between a “Citizen of the United States at Birth” and a “Natural-born Citizen.” One is an 18th century term, the other is a 19th century term, but they are synonymous.
“The Constitution does not say in words who shall be a natural-born citizen. Resort must be had elsewhere to ascertain that.”—Minor v. Happersett (1874). One of the “elsewheres” who shall be a “natural-born citizen” can be ascertained is statutory law as codified in the U.S. Code.
Both Triers of Fact and members of Congress are very used to interpreting and applying the legal language of “convoluted” (to laypersons such as yourself) statutes.
I can guarantee you with 100% metaphysical certitude that if Senator Cruz decides to run, judges will rule him to be Article II, Section 1 eligible and Congress will pass a bi-partisan “sense of the Senate” resolution confirming his eligibility just as they did in 2008 with Senate Resolution 511 for Panama Canal Zone-born John Sidney McCain.
You might want to take a look at Afroyim v. Rusk. Afroyim voted in an Israeli election. The State Department tried to take away his citizenship and the Supreme Court rule dc”not so fast, buckos.”
http://en.wikipedia.org/wiki/Afroyim_v._Rusk
According to what or whom?? The Minor court didn't use the form term, but they definitely made a distinction between being born in the country and being born in the country to citizen parents. One class, the latter, was exclusively characterized as natural-born citizens.
“The Constitution does not say in words who shall be a natural-born citizen. Resort must be had elsewhere to ascertain that.”—Minor v. Happersett (1874). One of the “elsewheres” who shall be a “natural-born citizen” can be ascertained is statutory law as codified in the U.S. Code.
There's nothing in Minor that says that it can be ascertained under statutory law. Where are you getting these ideas from?? In the context, Minor used NBC as an exclusive characterization of those person born to citizen parents. The "elsewhere" was a verbatim recitation of the Law of Nations definition of natural citizens.
I can guarantee you with 100% metaphysical certitude that if Senator Cruz decides to run, judges will rule him to be Article II, Section 1 eligible and Congress will pass a bi-partisan “sense of the Senate” resolution confirming his eligibility just as they did in 2008 with Senate Resolution 511 for Panama Canal Zone-born John Sidney McCain.
Nonsense. McCain's eligibility fit the Law of Nations criteria by being born to parents who were in the Armies of the State. Cruz's father was mot a U.S. citizen, while both of McCain's parents were. There's no legal foundation for declaring Cruz to be Constitutionally eligible.
And??? What exactly is the point?? This doesn't say anything about natural-born citizenship. That concept inherently EXCLUDES dual citizenship. Your example is about a naturalized citizen.
And on Obama’s childhood dual-citizenship:
We've already discussed Purpura elsewhere. The court's claims are not backed up by any legal citations, while the principle I'm talking about was brought up first in Shanks v. Dupont, affirmed in U.S. v. Rhodes and then affirmed again by U.S. v. Wong Kim Ark.
Well, let’s agree to disagree and if Senator Cruz decides to run, we’ll all just have to wait and see what unfolds in courts and in Congress.
By the way Minor v. Happersett and the Emmerich de Vattel position on natural born citizenship were at the crux of Kerchner v. Obama which went to the Supreme Court of the United States in 2010. It was denied cert.
Okay, here you are again, repeating the same demonstrably wrong theory. If you persist in repeating it, I'm going to persist in asking you how Bellei LOST HIS CITIZENSHIP. Obviously there *IS* a distinction.
Your aversion to discussing Bellei moves you out of the category of "objective but misinformed" and into the category of "advocacy for a specific preferred outcome." You are fully aware that Bellei blows your theory to h3ll, and that's why you don't want to discuss it.
So once again, if I don't report for Induction, will I lose my citizenship?
Congress clearly cannot amend the Constitution (although it can propose amendments to it).
Congress clearly can amend statutory law.
In context, you think it was clear upon the adoption of the Constitution what natural born citizen meant and that the Congress can’t change that original intent. There is precedent for this. It’s the Dred Scot case.
The Supreme Court ruled 6-to-3 that “all men” in the Declaration of Independence meant all White Anglo Saxon Protestant adult males. Hence, Dred Scot could never be a citizen of the United States and, so, had no standing to assert his freedom.
Abraham Lincoln, in his Cooper Union speech laid out the alternative position, that it meant what it means in Standard English, and cited numerous evidences to including Supreme Court precedents to that effect.
Take a look at the body of the Constitution, at the power of Congress regarding naturalization. Notice that Congress had the power to establish a “uniform” law regarding naturalization. If you would think about this, it implies that each state defined who were its natural born citizens and how somebody not a natural born citizen became naturalized.
Of course, each state deciding natural born and naturalization for itself had to be the case prior to the U.S. Constitution, from 1776 to 1789.
Now, let move forward. How was citizenship handled in the Northwest Territories? Did the Continental Congress provide for it, and did the U.S. Congress?
When we acquired the Louisiana Territory, how was citizenship handled? Could it have been that the Congress did it, or that the Senate did it (in the Treaty)?
When we annexed Texas, and then when we acquired the territories we got from Mexico after the Mexican-American War, how was citizenship in these places handled? By act of Congress or by Senate-approved Treaty?
When you think about these things, I think you’ll accept that the Constitution sort of failed to address the specifics of what “natural born” means. I say “fail,” because the Constitution doesn’t give Congress the power to decide who is a natural born citizen, and yet contingencies such as acquiring new territories would seem to require the Congress to recognize citizenship.
Most students of the Constitution agree that it’s kind of nebulous about natural born and that the Congress has asserted itself where there is a void. It is, therefore, understandable for people to argue the matter. The thing pops up from time to time. Members of the other party, and nativists regardless of party, can be counted on bringing the issue whenever a candidate for President falls short of the strictest possible interpretation of natural born.
Bellei lost his citizenship due to a State Department interpretation of the Immigration and Naturalization Act that was upheld by the Supreme Court and later rendered moot by subsequent legislation.
That subsequent legislation was passed before Senator Cruz was born.
Bellei visited the United States under his American passport in 1948, 1952, 1955, and 1962. His last trip was made in 1965 on his Italian passport.”
Senator Cruz, on the other hand, has been permanently domiciled in the USA.
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