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.”
And I’m telling anyone who’s interested that if Cruz decides to run and he’s the strongest conservative running, I will be supporting him 100%! And I believe the majority of the grassroots conservatives will be as well. He was born to a fully qualified U.S. citizen working temporarily in Canada and is thus a natural born U.S. citizen according to the letter and intent of the law of the land. Thank you very much.
Yes, he seems to be a good conservative. I like him so far.
But, as I said, I’m still sorry to see the Constitution dead.
He was also born to a fully qualified Cuban citizen, his father (which took priority over the mother in days past), so I wonder why he’s not a natural born Cuban citizen...
Divided loyalties (not that he has them, because I don’t see that he does)—that’s what the Founders were trying to prevent by insisting the President be a natural born citizen (born of two citizen parents on native soil, as it has been commonly understood for centuries), as opposed to just a citizen.
They agreed to seat Smith, who also argued Vattel supported his position. Whether the members supported Smith's position because they thought Ramsey's allegations were just sour grapes, or whether they supported Smith because of their respect for Madison, or whether they supported Smith because Madison's arguments swayed them, or whether they supported Smith because Smith's arguments swayed them, or for whatever reason it was they supported Smith, we cannot accurately say that it was one thing or another.
Apparently Smith and Madison had prior history when they were both in France and Smith undertook the task of performing some services for Madison et al.
I am arriving at the notion that Madison might not have been so principled as we would all wish to believe, and that he would sometimes do what he thought was in his best interests rather than remaining objective. The McClure incident is an example of this. Apparently Madison didn't regard that "place of birth" argument he made on behalf of Smith, as being persuasive in the instance of James McClure.
His documents got him a passport from the London Minster. So you have two different ministers - one in London , one in Paris saying two different things.
As I mentioned before, The American Consulate in England wasn't being besieged by false papers, while the one in France was. Likewise, the Diplomatic staff in England wasn't charged with procuring Florida, but the one in France was. They two ambassadors were dealing with very different circumstances.
We know from the September, 1807 Armstrong letter that McClure was in Madrid and Armstrong was suspicious of his and Aaron Vale's actions.
Was he looking for any excuse to have him arrested?
I believe this to be the case. Armstrong wanted McClure interdicted from interfering with US Acquisition of Florida. I cannot tell you how many letters I have read from both Jefferson and Madison fervently desiring Florida. Florida was simply a prize that they decided they would have.
According to Publius - "Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States . He is mistaken. The law of the United States recognizes no such claim."
Good point. From this it can be inferred that this is Rodman's position, but something from Rodman himself would be better. Even so, it is no secret that many people of the time period thought we followed the Jus Soli principle, especially with so many lawyers being trained into British Law and having no knowledge of the Deliberations of the Constitutional Delegates.
I have long argued that the only opinion which counts is that of the Delegates who wrote the law, and the legislators who ratified it. It is also my argument that Vattel was so widely known amongst this group, and his definition so obviously superior to the alternative, that they adopted it without remark because they assumed that learned men of their association knew that was the standard used.
That out of the loop lawyers thought we followed a different standard is perfectly plausible because In the vast majority of cases, a person born here was born to an American Father, or at the least a man intent to be a citizen. The English Principle overlapped with the Vattel principle in the vast majority of practical applications. (It's like Einstein and Newton. I most experiments, their results are virtually identical.)
I don't see that as much as Armstrong saw him as a land speculator work for himself and Vale."
Sure. I can buy that. The point remains, that McClure wasn't working in the best interests of the USA, and therefore was counter purpose to Armstrong.
Unless of course, Armstrong and Madison were looking for a way to keep McClure out of the Florida picture.
Well this is exactly what I think. But the point remains, Armstrong's claims regarding McClure's citizenship could not survive the first test if the Jus Soli principle was the universal standard in place at the time. It would have provoked a massive hue and cry that it is utter nonsense. It would have been roundly denounced by everyone who heard of it. That it wasn't indicates that Armstrong's assertion of the law was widely accepted.
I will further point out something of which I have just thought. If we accepted that McClure carried around his Father's Naturalization papers, it begs the question why?
In a system with a Universal Jus Soli standard the Father's naturalization papers are immaterial. They serve no purpose whatsoever. But in a system that relies on the Allegiance of the Father to establish the Allegiance of the son, those papers are absolutely necessary.
The fact that James McClure carried these papers indicates that he KNEW the standard required having an American Father.
And the affidavits sent with the Monroe letter to Joel Barlow.
Very much so.
I worry that even if the Courts declare him to be a "natural born citizen" that too many of the voters simply won't agree. Obama and others have spent the last five years convincing the population that the standard is "born in the USA" and i'm worried that come election time, many people are going to insist that this is the standard which applies.
He may win the court challenges, but ultimately lose the election. Not a good result for us.
PALIN/CRUZ 2016!
Ah, so you admit it is a technicality. Well yes it is, and yes winning on technicalities is for Pussies. Problem is, with the media being a millstone around any Republican candidate's neck, winning the old fashion way is simply conceding an unfair advantage to Democrats.
For me this topic is no longer about winning, it's about demonstrating who was factually correct, and who was factually wrong. It is also about demonstrating the folly of following incorrect understanding of the principles involved. It's about proving Establishment types wrong.
Your position justifies Barack Obama. My position completely excludes him. Our country would not be facing the horrors coming our way had we followed the more sensible, and factually correct position on this topic.
Obama is a half Foreigner, and wholly Un-American. The founders were sensible to provide a barrier to such as he. Too bad their descendants are such fools.
Divided loyalties (not that he has them, because I don’t see that he does) — that’s what the Founders were trying to prevent by insisting the President be a natural born citizen (born of two citizen parents on native soil, as it has been commonly understood for centuries), as opposed to just a [born] citizen.Hello WXRGina,
I agree with you completely with regard to both your take on Cruz (so far, he seems 100 percent conservative and pro-American) and on the sad loss of the original Constitutional meaning of natural born Citizen. However, if he ends up on our presidential ticket, I most certainly will be voting for him.
But I worry (as apparently do many others on this forum) that his non-native birth and his father's foreign citizenship may be (hypocritically) used by the opposition to discredit him and derail his campaign. The absolute worst case nightmare scenario would be that they use his foreign birth status as a last minute weapon during the call for objections in the electoral college to undo a Cruz victory and weasel in their own candidate, even in spite of a landslide vote. They would argue that it was okay that Ted Cruz and aka obama were both born to only one citizen parent, but that, unlike aka obama (who ostensibly was born in Hawaii) Ted Cruz was born on foreign soil, does not meet the Article II requirement and thus sadly is disqualified from becoming president.
Is this scenario possible? Yes, I think it is.
Is this scenario likely? Probably not, but I wouldn't put anything past those who believe that their ends justify any and all means.
Ted Cruz has not declared. Perhaps a two-citizen-parent, native-born true conservative like Sarah Palin (my personal favorite) will end up as our standard bearer and the question will be completely moot.
Spot-on, Elengr.
“Divided loyalties “
So, you think a liberal that hates this country but was born here is more qualified than someone who is also a natural born citizen but born in Canada? Idiocy.
“QUITE PLAIN MEANING”
Obviously not to you. Natural or naturalized; nothing else is possible, yet, your kind think there various other citizenship types.
As James Madison said, we ought not concern ourselves with what the law OUGHT to be, but what it is.
In my humble opinion, whining about the media is also for pussies. There has been an even more liberal dominated media (pre-Fox News, pre-conservative talk radio, pre-blogs, conservative news services and news aggregators) since Eisenhower was elected, twice; when Nixon was elected, twice; when Reagan was elected, twice; when George H.W. Bush was elected; and when George W. Bush was elected, twice.
As for your motivations for pursuing this issue, that is your right and prerogative. I take no issue with your motivations.
I really don’t think that Barack Obama cares about whether I justify his elections or not. He jumped through all the right hoops and achieved his goal. The other two branches of government acknowleging his legitimacy is all the justification he needs. The federal judiciary rules on his policies and initiatives and the Congress sends him bills to sign into law.
A federal judge who ruled on Obama’s eligibility put it this way and his words speak for me: “The Court observes that the President defeated seven opponents in a grueling campaign for his party’s nomination that lasted more than eighteen months and cost those opponents well over $300 million. Then the President faced a formidable opponent in the general election who received $84 million to conduct his general election campaign against the President. It would appear that ample opportunity existed for discovery of evidence that would support any contention that the President was not eligible for the office he sought. Furthermore, Congress is apparently satisfied that the President is qualified to serve. Congress has not initiated impeachment proceedings, and, in fact, the House of Representatives, in a broad bipartisan manner has rejected the suggestion that the President is not eligible for office. See H.R. Res. 593, 111th Congress. (2009) commemorating, by a vote of 378-0 the 50th anniversary of Hawaii’s statehood and stating ‘The 44th President of the United States, Barack Obama, was born in Hawaii on August 4, 1961.’”—U.S. District Court Judge David O. Carter, Barnett, Keyes, et. al. v. Obama, et. al. (2009).
When Cruz’s dad took Canadian citizenship, it was under the Citizenship Act of 1946 which would not permit Canadians to have dual citizenship. He would have had to renounce his Cuban citizenship. And when the elder Cruz took US citizenship, he renounced Canadian citizenship...showing that was his pattern.
My opinion is worthwhile to me. Whether it is worthwhile to you is of little interest to me.
I’ll leave it to anyone else who reads the post to decide for themself on its worth or lack thereof.
That's not what I said. Clearly you didn't care to read and comprehend. Nowhere did I say Cruz has divided loyalties--in fact, I supposed the opposite.
My "kind"? As if I'm some kind of oddity, maybe even a mortal enemy?
Rather than just state your points, those of you who refuse to accept the long, commonly understood definition of natural born citizen (born to two citizen parents on native soil) seem to find it necessary to be hostile to those of us who do. Whatever.
“commonly understood definition of natural born citizen (born to two citizen parents on native soil) “
Only to you is that some kind of fact when it isn’t. It is my Constitution, too, buddy, and you don’t get to redefine its meaning based on some barracks lawyer bullshit with the mentality of a teenager, “Well, gosh , EVERYBODY just knows that’s what it means! All my friends do!”
You are posting on a thread Jim posted about the CATO writeup and you haven’t even read it.
I don't give a rip who posted this thread or what the left-leaning CATO Institute claims. If you or anyone else wants to redefine--or even define--in an amendment, the meaning of "natural born citizen," then go amend the Constitution!
You're making quite a few assumptions about me (what I have or have not read, what I think or know or have studied,etc.), and that's fine; what do I expect from a jaded, knee-jerk, which you seem to be? But, I will say that you sound just like a liberal, with your baseless hostility. I have said NOTHING hateful against Ted Cruz--I said I like him!--yet, you attack me with your vicious crap.
Work to amend Article II of the Constitution, if you don't like it.
There ARE various types of citizenship’s.
Oh, I don’t know? Maybe Carl Marx, in a hypothetical alternative universe, has an anchor baby in our very diverse country. Then............ fill in the blanks.
Ted Cruz can be ANYTHING he wants to be in this country except the President.
I encourage Ted and his fellow countrymen, like the Rubio’s, take back their NATIVE country from the communists bastards.
That’s a war most FReepers would get behind.
It boils down to "might makes right", which is a perfectly suitable argument for ignorant barbarians, but wholly unsuitable to reasoned men. That you constantly advance it is an insult. It is a tacit implication that only judges can reason.
My experience has been the exact opposite. Judges seem particularly unsuitable for the task of reasoning. They are doctrinaire and suffer from a herd mentality.
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