Posted on 08/30/2013 12:02:15 PM PDT by Jim Robinson
By Ilya Shapiro, Senior Fellow In Constitutional Sudies and Editor-In-Chief, Cato Supreme Court Review
As we head into a potential government shutdown over the funding of Obamacare, the iconoclastic junior senator from Texas — love him or hate him — continues to stride across the national stage. With his presidential aspirations as big as everything in his home state, by now many know what has never been a secret: Ted Cruz was born in Canada.
(Full disclosure: I’m Canadian myself, with a green card. Also, Cruz has been a friend since his days representing Texas before the Supreme Court.)
But does that mean that Cruz’s presidential ambitions are gummed up with maple syrup or stuck in snowdrifts altogether different from those plaguing the Iowa caucuses? Are the birthers now hoist on their own petards, having been unable to find any proof that President Obama was born outside the United States but forcing their comrade-in-boots to disqualify himself by releasing his Alberta birth certificate?
No, actually, and it’s not even that complicated; you just have to look up the right law. It boils down to whether Cruz is a “natural born citizen” of the United States, the only class of people constitutionally eligible for the presidency. (The Founding Fathers didn’t want their newly independent nation to be taken over by foreigners on the sly.)
What’s a “natural born citizen”? The Constitution doesn’t say, but the Framers’ understanding, combined with statutes enacted by the First Congress, indicate that the phrase means both birth abroad to American parents — in a manner regulated by federal law — and birth within the nation’s territory regardless of parental citizenship. The Supreme Court has confirmed that definition on multiple occasions in various contexts.
There’s no ideological debate here: Harvard law professor Laurence Tribe and former solicitor general Ted Olson — who were on opposite sides in Bush v. Gore among other cases — co-authored a memorandum in March 2008 detailing the above legal explanation in the context of John McCain’s eligibility. Recall that McCain — lately one of Cruz’s chief antagonists — was born to U.S. citizen parents serving on a military base in the Panama Canal Zone.
In other words, anyone who is a citizen at birth — as opposed to someone who becomes a citizen later (“naturalizes”) or who isn’t a citizen at all — can be president.
So the one remaining question is whether Ted Cruz was a citizen at birth. That’s an easy one. The Nationality Act of 1940 outlines which children become “nationals and citizens of the United States at birth.” In addition to those who are born in the United States or born outside the country to parents who were both citizens — or, interestingly, found in the United States without parents and no proof of birth elsewhere — citizenship goes to babies born to one American parent who has spent a certain number of years here.
That single-parent requirement has been amended several times, but under the law in effect between 1952 and 1986 — Cruz was born in 1970 — someone must have a citizen parent who resided in the United States for at least 10 years, including five after the age of 14, in order to be considered a natural-born citizen. Cruz’s mother, Eleanor Darragh, was born in Delaware, lived most of her life in the United States, and gave birth to little Rafael Edward Cruz in her 30s. Q.E.D.
So why all the brouhaha about where Obama was born, given that there’s no dispute that his mother, Ann Dunham, was a citizen? Because his mother was 18 when she gave birth to the future president in 1961 and so couldn’t have met the 5-year-post-age-14 residency requirement. Had Obama been born a year later, it wouldn’t have mattered whether that birth took place in Hawaii, Kenya, Indonesia, or anywhere else. (For those born since 1986, by the way, the single citizen parent must have only resided here for five years, at least two of which must be after the age of 14.)
In short, it may be politically advantageous for Ted Cruz to renounce his Canadian citizenship before making a run at the White House, but his eligibility for that office shouldn’t be in doubt. As Tribe and Olson said about McCain — and could’ve said about Obama, or the Mexico-born George Romney, or the Arizona-territory-born Barry Goldwater — Cruz “is certainly not the hypothetical ‘foreigner’ who John Jay and George Washington were concerned might usurp the role of Commander in Chief.”
See post #679 & 683
Please read #679 and #683
This is the law on which the Founders relied in coming to their definition of “natural born citizen.”
This case is closed. In debating the 1790 law, they even SAY that they use Blackstone and his 1764 law guide. They also SAY that they go with the more modern English laws of the time in determining the status of children born overseas to citizen parents. They even SAY that one parent, the Father, is sufficient.
So, unless you want to get rid of female equality and the female vote, then our current law exactly reflects the law the Founders put in place in our first Congress.
Cruz has my primary vote if he runs! I can’t stomach having a POS RINO being forced on me again. Cruz is the real deal and just what America needs.
Reagan was the antidote to Carter.
Cruz could be the antidote to Obama.
If Cruz gets the nomination the MSM will spend billions spreading lies about the eligibility of Cruz. It will be nearly 24/7 on ABC, NBC, CBS, CNN and the rest of the POS mainstream media. This must be countered every step of the way with the facts. We have an epic battle against the media and for our sake, for the future of America, we must win this battle!!
Your logic is impeccable and you have stated the case very succinctly. You have stated in just a few short sentences what some legal scholar might state in a treatise of thousands of words.
Excellent post!
There’s no point debating this rationally.
Too bad.
Thanks for all the suggestions. Your blanket birther insults fall far from the mark, but I’ve seen how nasty you have been to people who research the Constitutional eligibility clause. Save those insults up, you absolutely will need them against the progressives who come after Ted. You might not want to spend that capitol on folks who would be on the same side as you.
I suppose people like you can employ the same methods of ridicule and dismissal towards the progressives who will attack Cruz as the obots used. Give it a try. They are hoping he runs, in case you haven’t been reading around, just so they can come after him on this. They won’t be intimated by you or any other person who taunts them for being a Cruz birther.
I think it is common sense for Cruz to get out ahead of this issue. I’m fairly certain I know what he’ll be up against as whenever I mention a piece of history which touches on the Article 2 topic people like you get all wound up and go wonkers. Now, if I was merely interpreting the material instead of presenting it in its original wording (with links) so that others can take from it what they will, I could understand the attitude.
Trust me on one thing. If the established cadre down in DC let Cruz anywhere near actually being nominated, all of you tolerant and very nice people who are slamming people like myself who have spent many hours researching will suddenly be USING our research to fight back against the progressives.
Sure some of you have done a little on your own, just enough to use as an excuse for insults and intolerance, but others have done some seriously in depth research which is fascination all on it’s own even if it had nothing to do with obama at all. I expect you may find yourselves digging through that in order to help Cruz when the progressives start their attack.
For myself, I love reading the history lessons contained in my hours of research. We had such impressively brilliant men who built our country that I come away inspired every time I do a little research.
See #576
I have supported Romney for God’s sake. And I couldn’t bear him. At all. His wife seems very nice though.
Don’t get me wrong here, but when I imagine Cruz running with Palin I instantly get an image of a frothing sea of wild progressives screeching and clawing and breaking up the place! The imagery is hilarious.
I am a realist when it comes to this crap. After McCain, then Romney, I realize how little say “We the People” have in who actually gets nominated. I’m content to wait to see who decides to run before I decide who I like. Then I suppose I’ll watch while the establishment destroys everyone in the field except the establishments chosen one. I had the opportunity to back Herman Cain, Santourum, Bachman, and last and least, Romney, in ‘12. I expect it may go like that again. I am still discouraged from that and don’t want to get excited about ANYONE right now. I mean, look at Rubio - six months ago he was yummy, now he’s getting heckled.
Yes, I know they will come after him. As I pointed out to someone bashing me for doing “birther” (Article 2) research, all the research the so-called birthers have done will suddenly become a huge pool of reference resource for Cruz backers.
The only reason I first paid attention to the whole obama birth certificate thing was because it was the FIRST time I learned that we have no established vetting ritual in place for Presidential candidates. “The People” are supposed to do it. Go figure.
I can well imagine what the progressives will have in store for Cruz. My preference would be to disarm them wherever possible well before any run is announced.
The progressives are very close to their vision becoming reality, a Hillary presidency will finish this country off.
Actually, I admire the accomplishments of those birthers who worked on interpretive issues. If you wish, you may read what I wrote about a week ago.
The flaw in birtherism was its determination to make an end run around the Constitutional presidential selection method (selection by electors) in favor of an extra-Constitutional judicial selection system. That end run was blocked - and it was blocked by the judiciary that it was intended to benefit.
So, it's over now. Those who have arrived at their own special little definition for the NBC clause can pitch that special little definition to the voters and to their electors.
And, that is as it should be.
Ted Cruz - 2016
Noted. My only addition to one saying they understand the need to support Ted Cruz is to say that the Cruz really is an NBC but that Obama’s mother’s age and uncertain location made the birther argument against Obama’s NBC status a real concern.
She definitely wasn’t old enough and Obama’s place of birth was foggy.
You’ve really got to read #679 and #683, LJ. Seriously.
Excellent point!
Xzins, I’ve read all about this, hundreds and many multiples of hundreds of educated, well reserached comments on FR since 2008.
I know all I need to know.
FR has gone down a rabbit hole, which many will regret, once they sober up.
And to my knowledge this remained the case up until 1922 when Congress passed the Cable act, effectively splitting the heretofore normal condition of both parents being of the same citizenship.
Do you know of any circumstance prior to this in which parents had differing citizenship?
If not, then read this: http://www.freerepublic.com/focus/f-bloggers/3061617/posts
First time I have heard your “flaw in birtherism” theory. I never noticed that particular “determination” advanced by those you denigrate as “birthers”. Really, that is the very first I have heard of that.
Of course I haven’t read more than maybe 10% of the posts and comments on this forum re the topic. If that much. You have probably spent more time commenting on birther topics than I have.
I’m sorry, I have no interest in reading any more.
I’ve read every thread about eligibility for years. I don’t want to read any excuses or twistations of the truth trying to prove that someone born in Canada to a foreign father is a NBC.
You haven’t read this.
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