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.”
The Founding Fathers’ original thinking on this issue was embodied in the Naturalization Act of 1790: “The children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens”.
The first major work of exposition of the Constitution was written by jurist, historian and confidant of Benjamin Franklin, Alexander Hamilton and George Washington, William Rawle. President Washinton appointed William Rawle to be the first U.S. Attorney in Pennsylvania.
Rawle wrote in his book “A View of the Constitution of the United States” (2nd Ed. 1829): “…he who was subsequently born a citizen of a state became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts whether the parents are citizens or aliens is a natural born citizen in the sense of the Constitution and entitled to all the rights and privileges appertaining to that capacity.”
And the current law of the land qualifies Senator Cruz as a natural born citizen: 8 U.S.C. § 1401: “The following shall be nationals and citizens of the United States at birth:
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years...”
Wrong. It is Barack Obama’s birth in Honolulu and his mother’s birth in Wichita, Kansas that qualify him as a natural born citizen.
“Anyone in the world,” including Vladimir Putin woud not qualify.
Obama’s eligibility was challenged in court and numerous courts ruled him to be a natural born citizen. No action of Congress disqualified him from being eligible.
Here’s one example of a court ruling:
Rhodes v. MacDonald, U.S. District Court Judge Clay D. Land: “A spurious claim questioning the president’s constitutional legitimacy may be protected by the First Amendment, but a Court’s placement of its imprimatur upon a claim that is so lacking in factual support that it is frivolous would undoubtedly disserve the public interest.”—U.S. District Court for the Middle District of Georgia, September 16, 2009.
http://www.scribd.com/doc/19809978/RHODES-v-MacDONALD-13-ORDER-denying-3-Motion-for-TRO-granting-8-Motion-to-Dismiss-Ordered-by-Judge-Clay-D-Land-on-09162009-CGC-Entered-0
PALIN/CRUZ 2016!
Everything about the origin of Obama is assertion only. There is no evidence to support those assertions. He has locked up all information so that it is unavailable to anyone and has put forth a patently phoney “birth certificate” in more than one version. The court rulings hinge on the fact that he was elected and the judges do not want to disturb the republic or are protecting their guy, nothing more. Judging by the expense and the fervor of the hiding of information about Obama it is those who maintain that it is as he claims who are nut and cases and Democrats.
Under the Full Faith and Credit Clause in Article IV of the U.S. Constitution, when a state of the union confirms and verifies the authenticity of a public record, every other state accepts that record as authentic and valid.
No state failed to accept Obama on their ballot in 2008, before he was ever elected, or in 2012 when he ran as an incumbent.
http://www.azcentral.com/12news/Obama-Verification.pdf
The Republican Governor of Hawaii also verified the authenticity of his birth record.
“You know, during the campaign of 2008, I was actually in the mainland campaigning for Senator McCain. This issue kept coming up so much in the campaign, and again I think it’s one of those issues that is simply a distraction from the more critical issues that are facing the country. And so I had my health director, who is a physician by background, go personally view the birth certificate in the birth records of the Department of Health, and we issued a news release at that time saying that the president was, in fact, born at Kapi’olani Hospital in Honolulu, Hawaii. And that’s just a fact. And yet people continue to call up and e-mail and want to make it an issue. And I think it’s, again, a horrible distraction for the country by those people who continue this. ... It’s been established. He was born here.”—Governor of Hawaii Linda Lingle
Allen v Obama, Arizona Superior Court Judge Richard E. Gordon: “Arizona courts are bound by United States Supreme Court precedent in construing the United States Constitution, and this precedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President. Contrary to Plaintiff’s assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold otherwise.”—Pima County Superior Court, Tuscon, Arizona, March 7, 2012
PALIN/CRUZ 2016!
Palin yes. But Cruz? The campaign will be about nothing else than eligibility. The MSM will talk, harangue, scream, about nothing else. The “Debates” will not permit any other subject to be aired. The voters will not vote for someone who appears to have only one issue and that one issue is not relevant to anything that matters in government and policy. They will also feel the trepidation of voting for someone against whom charges of illegitimacy are incessantly aired by all their “trusted” public sources. And the government itself will throw tax resources into the fray against Cruz because of “eligibility.”
Under today”s laws, one American citizen parent who meets the residency requirement is enough.
Every Obot/anti-birther web site or blog that I’ve checked is supporting Cruz as being eligible.
For example:
http://www.obamaconspiracy.org/2013/08/yeah-cruz-is-eligible/
Just as liberal Democrats, including Senator Obama, co-sponsored Senate Resolution 511 to support Panama Canal Zone-born John McCain’s eligibility, they’ll do the same for Senator Cruz.
PALIN/CRUZ 2016!
Senator Cruz did not have to be naturalized.
But what of James McClure? You yourself pointed out that John Armstrong described him as a "naturalized" citizen. John Armstrong was well aware that he was BORN in Charleston because McClure had the papers to prove it.
The fact that Armstrong referred to him as "naturalized" (and John Armstrong was in fact a Delegate of the US Congress in 1787 and therefore ought to know what was the common understanding of the time.) indicates that the United States did not follow the Jus Soli rule for citizenship, but instead explicitly followed the Partus Sequitur Patrem rule.
I think much of the common understanding of James McClure's citizenship status has remained undiscussed. We have a dichotomy here. We have a condition in which the facts do not comport with what is alleged to be the common understanding of the time.
Armstrong, in a confidential memorandum to James Madison, described James McClure as a "naturalized" citizen. How do you respond to this fact, seemingly in conflict with the argument you would have us believe?
William Rawle is one reference, not the only reference. The point is that there was a diversity of opinion on this issue even in the time of the Founders and Framers. There was no monolithic “correct” point of view.
In fact, constant citation of modern opinions regarding ancient meanings is a deliberately misleading tactic. It is an admonition that people do not need to examine the facts themselves, because their intellectual superiors have done their thinking for them, and rendered their Imperial Decrees.
"Stay out of the past!" You say! "Listen to MODERN Opinions, not OLD opinions."
I see you as being deliberately deceitful in your methods of argument. You don't want to discuss the actual truth, you only want to talk about what modern people who agree with your position allege that it is. You are an obstructionist. You are someone who attempts to throw up roadblocks to thwart the efforts of people to see the past clearly.
The world is full of people who do as you are doing, and the toleration of such is one reason we are on the road to ruin.
If you have a better reference, I would suggest you put it on the table. I have argued this topic a long time, and seemingly all your arguments lead back to Rawle.
The point is that there was a diversity of opinion on this issue even in the time of the Founders and Framers. There was no monolithic “correct” point of view.
While I will grant that that is a possibility, I will also point out that the possibility also exists that there WAS a monolithic "correct" point of view. (Among the Delegates and Ratifiers, who are the only people that matter anyway.)
Certainly it is possible that some subsequent courts and various ignorant lawyer types presumed that the delegates were referring to British Common law, but their opinions do not determine what was the intent of the delegates. So far as I have been able to determine, actual delegates have voiced opinions and expressed actions which indicate that they support the Vattel definition more so than the British Common law definition.
Virginia Delegates John Marshall and Bushrod Washington deliberately CITE Vattel in support of their understanding of US Citizenship.
James Wilson, Benjamin Franklin and William Lewis also appear to express Vattel's understanding of the term.
And all you've got is Rawle, publishing a book 42 years later, and he not even being a delegate?
Not if they think he has a chance to win. Not this time. They are too close to the brass ring.
Benedict Arnold was a natural born citizen.
Aaron Burr (tried for treason but acquitted) was a natural born citizen.
John Brown was a natural born citizen.
Robert Hansson (FBI-KGB double agent) is a natural born citizen.
Aldrich Ames (CIA-KGB double agent) is a natural born citizen.
You must have me confused with someone else. That was the first time I have ever referenced Rawle.
Time will tell.
When Senate Resolution 511 was passed in April, 2008, Senator Mccain was leading in the public opinion polls but the Democrats were hoping for the brass ring with either Hillary or Obama.
PALIN/CRUZ 2016!
“And all you’ve got is Rawle, publishing a book 42 years later, and he not even being a delegate? “
I’ll take Rawle over a Swiss legal philosopher who never once set foot in the United States. Knowledge and practice of AMERICAN law trumps international law in my book, any day.
Woo Hoo!
They were hoping for it. Now they are millimeters from it. They Congressionally naturalbornized McCain because they needed to insulate the kenyan. Mrs. Bill does not have that problem and there will be no need to insulate the kenyan any longer. In fact it would be in the interests of The Party for the kenyan to come out as actually a legal Kenyan, or Indonesian, or British Empire citizen or whatever. Democrats have in the past said that the US presidency should be open to anyone in the world and that anyone in the world should be able to vote for the US President because he is, in effect, President of the World.
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