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.
In the Kerchner complaint/petition, we allege that Obama has not conclusively proven that he was born in Hawaii. More importantly, we also allege that he is not an Article II "natural born Citizen" because when Obama was born his father was a British subject/citizen and Obama himself was the same, citing E. Vattel’s, The Law of Nations and Natural Law (1758) and John Jay’s letter of 1787 to then-General George Washington regarding providing a strong check on keeping foreign influence out of the Office of Commander in Chief by requiring that only a “natural born Citizen” occupy that critical and powerful office.
You seem to be purposely blurring the point. These two cases still hinge on statutory law and not on natural law as the Supreme Court used to exclusively define natural-born citizen. It doesn’t matter that Cruz had permanent domicil; he was not a natural citizen at birth.
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In general, everyone born in Canada from 1947 or later acquires Canadian citizenship at birth.
The only exceptions concern children born to diplomats, where additional requirements apply.
Section 3(2) of the current act states that Canadian citizenship is not granted to a
child born in Canada if, at the time of his/her birth, neither of his/her parents
was a Canadian citizen or Canadian permanent resident and either parent
was a diplomatic or consular officer or other representative or employee of a foreign
government in Canada or an employee of such a person.
However, should the immigration status of the parents of such persons change to permanent
resident, they may be granted citizenship immediately, or when the parents
acquire citizenship through naturalization, at the discretion of Citizenship and Immigration Canada.
end snip
How do I lose my citizenship?
“This therefore requires us to believe that Congress can redefine the meaning of words in the US Constitution, which is absurd.”
Not really. If there is doubt about the meaning of a word, or three, then it is entirely reasonable for Congress to explain it. I prefer that, on the whole, to the courts giving their interpretation.
Abraham Lincoln once asked a witness:
“Suppose you call a tail a leg... How many legs would a sheep have? “
“Five.” Said the witness.
“Not true.” Said Lincoln. “Just because you call a tail a leg, doesn’t make it so.”
Yes, but there actually IS a known definition of leg. There was also a known legal definition in 1787 of “natural born citizen”, and you try to ignore it and substitute your own.
Just because YOU reject the common law meaning the Founders were familiar with, doesn’t make it so...Mr Fivelegs.
Interesting. You’d think we could do the same.
Well, you used to (prior in 1978) be able to lose it by being named Aldo Mario Bellei, have one citizen parent and one non-citizen parent, have dual Italian and American citizenship, live your life in Italy, make sporadic trips back to the US , use an Italian passport and fail to deploy with the US military. But those conditions no longer exist, so you can’t any more unless you are naturalized.
Aldo Mario Bellei (P) was born in Italy to an American mother and an Italian father. Bellei was issued a United States passport when he was eleven years old and visited the United States several times. His was warned of the requirements under the Act the last time he successfully renewed his passport before losing his citizenship.
Bellei registered with the American Consul in Rome in compliance with United States Selective Service laws and took and passed an army physical examination. He received several additional warnings that he was in danger of losing his citizenship. Soon after he turned 24 he was advised orally by the American Embassy in Rome that he had lost his citizenship for FAILURE TO SATISFY THE RESIDENCY REQUIREMENT.
It should be noted that the original trial court ruled the statute under which Mr. Bellei was stripped of his citizenship to be unconstitutional. And as I mentioned above and previously, that statute is no longer in the US Code..
Afroyim v. Rusk, 387 U.S. 253 (1967), is a United States Supreme Court case in which the Court ruled that citizens of the United States may not be deprived of their citizenship involuntarily. The U.S. government had attempted to revoke the citizenship of Beys Afroyim, a Polish-born man who had voted in an Israeli election after having become a naturalized U.S. citizen, but the Supreme Court decided that Afroyim’s right to retain his citizenship was guaranteed by the Citizenship Clause of the Fourteenth Amendment to the Constitution. In so doing, the Court overruled one of its own precedents, Perez v. Brownell (1958), in which it had upheld loss of citizenship under similar circumstances less than a decade earlier.
The Afroyim decision opened the way for a wider acceptance of dual (or multiple) citizenship in United States law. The Bancroft Treaties—a series of agreements between the United States and other nations which had sought to limit dual citizenship following naturalization—were eventually abandoned after the Carter administration concluded that Afroyim and other Supreme Court decisions had rendered them unenforceable.
The impact of Afroyim v. Rusk was narrowed by a later case, ROGERS v. BELLEI (1971), in which the Court determined that the Fourteenth Amendment safeguarded citizenship only when a person was born or naturalized in the United States, and that Congress retained authority to regulate the citizenship status of a person who was born outside the United States to an American parent. However, the specific law at issue in Rogers v. Bellei—a requirement for a minimum period of U.S. residence that Bellei had failed to satisfy—WAS REPEALED BY CONGRESS IN 1978.. As a consequence of revised policies adopted in 1990 by the United States Department of State, it is now (in the words of one expert) “VIRTUALLY IMPOSSIBLE to lose American citizenship without formally and expressly renouncing it.”
‘”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.”
The decision of the New Jersey Secretary of State to place Obama’s name on the ballot was affirmed by the New Jersey Superior Court.
The point is, Congress doesn't get to re-write it.
There is no way in f***ing H3ll that a "natural citizen" would be deprived of his citizenship for failure to reside, or failure to be inducted.
That the law was subsequently changed is irrelevant. That Cruz would have met the requirements of such a law, is irrelevant. What is relevant is that the Supreme Court determined that a citizenship which is granted by congress can be removed by congress.
And now I think you are just being dishonest. You understand the point, you just won't admit it.
A citizenship which is granted by congress can be removed by congress.
The point of the original article is that the definition of NBC may have allowed parliament (and thus Congress) to define it.
If you follow thru a few links, you get this comment:
“Although the eligibility of native born U.S. citizens has been settled law for more than a century,
there have been legitimate legal issues raised concerning those born outsideof the country to U.S.
citizens. From historical material and case law,it appears that the common understanding of the
term “natural born” in England and in the American colonies in the 1700s may have included
both the strict common law meaning as born in the territory (jus soli), as well as the statutory
laws adopted in England since at least 1350, which included children born abroad to British
fathers (jus sanguinis, the law of descent).
The weight of legal and historical authority indicates that the term “natural born” citizen would
mean a person who is entitled to U.S. citizenship“by birth” or “at birth,” either by being born
“in” the United States and under its jurisdiction, even those born to alien parents; by being born
abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for
U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S.
citizen by birth or at birth, and who was thus born an “alien” required to go through the legal
process of “naturalization” to become a U.S. citizen.”
That would be in accord with part of the WKA decision’s discussion on the meaning of NBC. I”m back in school now and need to study for a test tonight, but will try to post more later or tomorrow.
Doesn’t a bill passed by Congress have to be signed into law by a President? If a President doesn’t sign a bill, doesn’t it take a two-thirds vote of both Houses to override a veto? Can’t any bill signed into law be challenged as unconstitutional at the Supreme Court? Congress can’t impose rules absent the participation of the other two branches of government. In the case of Bellei, Congress rectified a statutory mistake by repealing the offending section of the statute.
Large font and bold type can’t make up for facts.
Acts of the Parliament of England/Great Britain define who may be a natural born subject, not the "common law" of that country. The definition has varied over time.
Acts of the Congress of the United States defines who may be naturalized and by what mechanism. Naturalization creates citizens, Congress has no power over creating natural born citizens.
Congress cannot make someone a NBC, but they probably can define its meaning. That is based on the English common law principle which had ‘natural born subjects’ who both met the original definition, and also those who had been defined as such by Parliament.
“Of relevance to any meaning and “common understanding” of the term “natural born” within the American colonies and at the time of the drafting of the Constitution is the legal treatise on the laws of England referred to as “Blackstone,” for its author William Blackstone. Published in 1765, this treatise was not only available, but was widely known to the framers at the time of the drafting of the Constitution.
As noted by the Supreme Court of the United States, “Blackstone’s Commentaries was widely circulated in the Colonies ...,” and that “undoubtedly the framers of the Constitution were familiar with it.” As discussed in the earlier section of this report on the common law, Blackstone explained that “natural born” subjects in England and the American colonies included all those born “in” the lands under British sovereignty. Concerning specifically the issue of children born abroadof English subjects, Blackstone explains clearly that such children are then (in 1765) considered under the law of England as “natural born” subjects, and have been considered as such for most purposes since at least the time of Edward III (1350), because of the development of statutory law in England to “encourage also foreign commerce.”
As stated by Blackstone in his 1765 treatise,
[A]ll children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
The “commonly understood” meaning of the term “natural born” in the United States at the time of the drafting of the Constitution might thus be broader than the early, strict English “common law” meaning of that term.
As noted by Charles Gordon, former Chief Counsel of the Immigration and Naturalization Service, whether the body of English law in the 1770s was from early common law, from statutory law, or from the common law modified over the years by statutory law, these provisions “were part of the corpus of the English law in existence at the time of the Revolution, which was substantially recognized and adopted by our forefathers.”
This common usage and popular understanding to the framers of the term “natural born” subject (as employed in England), and the term’s apparent evolution and broadening of meaning through statutory law, has thus led several other legal commentators and historians to conclude: “The constitutional Framers had a broad view of the term ‘natural-born’ and considered all foreign-born children of American citizen parents eligible for the Office of the Presidency”; or, as stated by another: “[T]he delegates meant to apply the evolved, broader common law meaning of the term when they included it in the presidential qualifications clause.”
Presidential historian Michael Nelson has also averred that the term appeared to have a common meaning at the time of the drafting of the Constitution which involved within its concept both the common lawdefinition and mode of acquisition of citizenship (through jus soli), as well as the common understanding of the long-standing broadening of such term by the operation of English statutory law to include those subjects who may have traveled abroad for purposes of commerce, or otherwise. As noted by Nelson (and pointed out by others), a more restrictive meaning to include only those born within the boundaries of the United States would mean that John Jay, who may have recommended the precise term to the Convention, would have intended to exclude from eligibility his own children who were born in Spain and France while Jay was representing the United States abroad:
The provision for “natural born Citizen” probably was aimed at immigrants, although the term is so unusual as to be vague.... [b]ut [it] had deep roots in British common law. In medieval times it had embodied the doctrine of jus soli: a natural born citizen was one born within the realm (on the soil, so to speak). But with increased commerce and travel, Parliament, starting in 1350, seemed to expand the definition of natural born to incorporate the doctrine of jus sanguinis. Now babies born of British citizens abroad or at sea were included as well. One can presume only that Jay and the delegates meant to apply the evolved, broader common law meaning of the term when they included it in the presidential qualifications clause. Certainly Jay did not mean to bar his own children born in Spain and France while he was on diplomatic assignments, from legal eligibility to the presidency.”
http://www.fas.org/sgp/crs/misc/R42097.pdf
Congress has no such authority.
Congress's authority over citizenship pertains ONLY to naturalization.
Acts of the Parliament of England/Great Britain define who may be a natural born subject, not the “common law” of that country.
The Acts of Parliament are not part of United States law.
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