The Top Ten “Birther” arguments against Ted Cruz, and why they are completely wrong

Western Free Press ^ | March 13 2014 | Patrick Colliano and Gregory Conterio

[iowamark]

Are you confused about the claim that Ted Cruz is not a natural-born citizen, with all its attendant disinformation? Well, here is your answer.

We have gathered together the top arguments of those who challenge Senator Cruz’s eligibility to serve as president, along with exhaustive research and links to original sources, and condensed it all into one, bite-sized yet authoritative piece.  We have done all the work for you, assembling a definitive reference you can use any time you hear someone say that Ted Cruz is ineligible to run for and serve as president.

So without any further ado, here are the Top Ten Birther*Arguments against Ted Cruz’s eligibility, and the reasons they are completely wrong.

Argument 1 – “Natural-born citizen” (NBC) and “Citizen at birth” (CaB) have completely different meanings.

Answer – No, they do not.  They are synonymous.  If you think the idea they aren’t synonymous is silly, you may not need to go on, because unless it is true, the entire debate is over.  You would also be in agreement with the Congressional Research Service, which published a paper in 2011 reaching the same conclusion.  Trying to argue that they do not mean the same thing is akin to claiming the terms dog and domestic canine mean completely different things.  The burden of proof rests with the Eligibility Challengers.  I have never heard or read anyone provide any proof whatsoever for the contention these terms have different meanings.  There is no case law, and nothing else in the U.S. code or the Constitution itself, lending support to the idea that the two terms have separate meanings. Claims to the contrary are dealt with serially throughout this primer.

Argument 2 – Cruz isn’t qualified because he’s not a natural-born citizen; let him stay in the Senate where he’s doing some good.

Answer – If Cruz isn’t qualified to serve as president, he isn’t qualified to serve in the Senate either, because he is not a citizen at all.  There are only two types of citizenship: natural-born, and naturalized.  If Cruz is not a NBC, he is not a citizen at all, because he has never been naturalized.  I have heard and read many arguments put forth by Eligibility Challengers to the effect that while Cruz is not natural-born, he is still a citizen.  The impossibility of this claim is supported by case law.

Argument 3 – A NBC is someone born on U.S. soil, whose parents are BOTH citizens.

Answer – This is false.  The term NBC comes to us from English Common Law.  This fact is confirmed and supported by judicial precedent.  And at the time of the founders, the legal definition of NBC was more sophisticated and complex.  It included children born on English soil, as well as children born on foreign soil, whose fathers were English subjects.  This was in fact the standard for establishing citizenship at birth for most of the world at the time.  The only distinction between then and now is that women are now considered legally equal to men, so that citizenship status may flow from either parent, not just the father.  That is unless you want to try to make the argument citizenship status should ONLY flow from the father to the child, and the mother’s status doesn’t count.  Good luck making that argument.

Argument 4 – The Framers used the definition of NBC established by Emer de Vattel in his book The Law of Nations, which requires native birth, and TWO citizen parents.

Answer – First, as noted above, the term NBC comes from English Common Law, not from Vattel, who did not use that term in writing his book.  Second, there is no evidence the Framers gave Vattel’s work any special weight or influence when writing the Constitution.  Vattel was a committed monarchist, and many of his views were antithetical to the Framers.  Finally, Vattel did NOT use the two-parent citizens standard in his recognition of what he called “indigènes.”

Argument 5 – The Supreme Court case “The Venus” establishes a legal precedent defining the meaning of NBC

Answer – No, it does not.  There is no such language in the opinion written in this case.  Eligibility Challengers point to a quotation of Vattel’s The Law of Nations that is contained in the ruling, and claim it creates legal precedent establishing a definition of NBC.  The trouble is the Venus was not a unanimous decision by the court.  The passage quoted comes from the dissenting opinion of Chief Justice John Marshall.  Dissenting opinions do not carry any legal authority or precedent.  And as has already been established earlier, Vattel is not regarded as either the source of the meaning of NBC, or even particularly influential upon the Framers.

Argument 6 – The Supreme Court case Shanks vs. DuPont establishes a legal precedent defining the meaning of NBC

Answer – No, it does not.  There is no such language in the opinion.  The case is somewhat complicated, and concerns the question of when a woman by the name of Ann Shanks actually lost her citizenship status in order to determine the disposition of her estate after her death, not whether or not she was a citizen.  The particulars took place during a unique time in history, that being the War for Independence with Great Britain, and Shanks’ citizenship status was controlled by a combination of factors, including her father’s choice to support the Colonials as opposed to the British, her age at the time of his death, and the particulars of the Treaty of Paris, which established the terms to end the war.  The only precedent concerning citizenship established by this case is that one cannot gain or lose citizenship through marriage, even if that marriage is to an alien of a belligerent nation.

Argument 7 – The Supreme Court case Dred Scott vs. Sanford establishes a legal precedent defining the meaning of NBC

Answer – No, it does not.  There is no such language in the opinion.  As with The Venus, eligibility challengers are relying again on a quote taken from Vattel incorporated in one of the opinions written in the decision, but once again it is not the majority opinion of the court, but a separate opinion written by Justice Peter Vivian Daniel, and as with The Venus, it carries no legal weight or influence.  AND as has been established elsewhere, Vattel was still not the source of authority for the meaning of NBC.  (Apparently, however, he was quite influential on Supreme Court Justices writing minority opinions!)

Argument 8 – The Supreme Court decision Minor vs. Happersett establishes a legal precedent defining the meaning of NCB

Answer – No, it does not.  There is no such language in the opinion.  You can find a detailed analysis of the case here.  I find the fact eligibility challengers ever refer to this case to be really ironic.  Minor was a suffrage-era case in which a woman, Virginia Minor, argued that being a citizen by birth, she could not be denied the right to vote.  The Supreme Court agreed that she was a citizen by birth (obviously), but that did not give her any such right—indeed, that the Constitution did not guarantee anyone such a right.  The irony is the precedents this decision does establish actually defeat many of their own arguments.  These include the Court’s finding that Congress could define the meaning of NBC, and that there were only two types of citizen, NBC and naturalized.

Argument 9 – The Supreme Court case United States vs. Wong Kim Ark has nothing to do with the question of NBC, because Wong Kim Ark’s citizenship “came from the 14^th Amendment.”

Answer – This case is something of an “inconvenient truth” for eligibility challengers—first, because it is one of the most important court cases in U.S. history dealing with citizenship, and second, because rather than supporting their argument, it undermines it.  It is truly shocking to see how many eligibility challengers don’t bother to read the cases they cite, as you will sometimes hear them claim that this case somehow proves their contentions about the definition of NBC.  Quite the reverse is true.  Wong Kim Ark clearly establishes English Common Law as the source of the Framers’ understanding of NBC, and that anyone born on U.S. soil, regardless of their parentage, obtains their citizenship at birth.  By the way, this precedent also covers Sen. Marco Rubio, who some eligibility challengers also like to claim is not a NBC because his parents were not citizens at the time of his birth.  Rubio was born in the United States, and so is a NBC.

Argument 10 – The Supreme Court case Perkins vs. Elg establishes a legal precedent to the effect that NBC requires TWO citizen parents

Answer – No, it does not.  There again is no such language in the opinion.  The typical claim is that the opinion says the only reason Perkins was a CaB is that her parents were both naturalized citizens, and this means you must have TWO citizen-parents in order to be a CaB.  The opinion says nothing of the sort, and in fact actually makes clear the fact that her status as a citizen is established by her birth on U.S. soil alone.

It actually all boils down to just one argument…

The first thing one must understand is the entire eligibility-challenger argument as it pertains to Ted Cruz is based on two assertions:

1. The terms natural-born citizen (NBC) as used in Section 1, Article II of the Constitution, and citizen at birth (CaB) are NOT synonymous, and mean entirely different things.
2. The term natural-born citizen had a single, clear, and universally understood meaning among the Framers of the Constitution when employed in the writing of Article II, and that meaning trumps all code law.

Briefly, these two assumptions are vital to ALL arguments made by eligibility challengers, because, as noted earlier, NBC and CaB are synonymous terms, and the definition of CaB is contained in Title 8, Subsection 1401 of the U.S. Code.  By claiming the two terms are not synonymous, they believe they can dispense with the definition contained in 1401 altogether.  This is vital to their arguments, because under 1401, Cruz is clearly qualified to serve as president.  This is not some dodge or loophole as eligibility challengers may imply, this law is many decades old, and predates Cruz’s birth.  Subsection 1401 has been the controlling legal authority on the definition of who is a natural-born citizen, a.k.a. citizen at birth, since its codification, and in fact is supported by Supreme Court precedent as well as all our history.  Vattel, Wong Kim Ark, Shanks and all the rest is just window dressing.

In conclusion, not a single argument put forth by the eligibility challengers holds up.  Each is either a misinterpretation at best or an outright falsehood at worst.  Arguing over this issue has become a waste of time much better spent on other things.  Unfortunately, there are a few folks who continue to cling to this view, and equally unfortunate is the often venomous attitude they display toward anyone who disagrees with them.  Most of the arguments you may encounter will consist of one or more of the claims we have covered above.  And most of the time, they will count on you not bothering to actually try to research or verify what they claim a particular court case says.  Consider this your “Cliff Notes” on all their arguments—a concise, documented reference to all that is wrong about their claims.

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*Birther – Although this term is proudly worn by some, it is often used as a demeaning pejorative, which is not our intent.  Unfortunately, it is also the only widely recognized term for those who argue against the eligibility of Cruz, Obama, Rubio and others, based on their misunderstanding (or to be fair, their misrepresentation in some cases) of U.S. law.  To avoid the appearance casual insult, we have substituted the term Eligibility Challengers throughout most of this work.

_________________________

Additional research and documentation can be found here:

Primer on the Eligibility of Ted Cruz for President in 2016: Part 1 – Did Vattel’s The Law of Nations provide the Framers’ definition of Natural Born Citizen? by Patrick Colliano

Primer on the Eligibility of Ted Cruz for President in 2016: Part 2 – An Analysis of Minor vs. Happersett, by Patrick Colliano

Primer on the Eligibility of Ted Cruz for President in 2016: Part 3 – Analysis of The Venus, Wong Kim Ark, Shanks vs. DuPont and other SCOTUS precedents dealing with Citizenship, by Patrick Colliano

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About the authors – A very common accusation hurled at anyone skeptical of “Birther” theories is that they are motivated by simple political partisanship, so it is worth noting that Mr. Colliano and Mr. Conterio occupy opposite ends of the political spectrum on most issues.

Mr. Colliano is comfortable being described as generally liberal.  No supporter of Ted Cruz, he says ” Even as I was writing my essays, the news was reporting his one-man filibuster of the Affordable Care Act. I had to ask myself again why I was bothering to spend my time and creativity defending this guy. The answer, of course, is that it’s right. If Cruz wins the next Presidential election, especially by a narrow margin, I could end up kicking myself for it. But Ted Cruz, like all candidates for public office, deserves to be judged upon his merits, not rejected on the basis of some ridiculous misconception that he is not eligible.”

Mr. Conterio is unabashedly conservative in his views, as regular readers of WFP will undoubtedly know.  He says “I was actually beguiled by the early reports and arguments that Obama may not be a natural-born citizen, but was quickly disabused of the idea after spending an afternoon verifying Obama’s parentage, and going straight to the U.S. Code to see what it says about being a natural-born citizen.  I knew at that point it was foolishness.  Today, I probably have just as many conservatives who don’t like me as liberals, due to my persistent habit of debunking their claims about Obama, Cruz, or Rubio.  It is way past time we move beyond the ‘birther’ phenomenon.”

[DiogenesLamp]

We’ll all have to wait and see if anyone files suit against Senator Cruz. Thus far, no one of any political ideology has challenged his eligibility in court.

Your handle should be "Naive Germanicus." Of course they will not challenge him now. Brer rabbit needed to be flung into that briar patch before he could demonstrate that was what he wanted all along.

We commit, they file.

[DiogenesLamp]

Did you see any evidence of Obama trying to put the eligibility issue to rest and get it behind him?

To paraphrase Hitlery, "What difference does it make at this point?"

[Nero Germanicus]

O.K., will do.

[DiogenesLamp]

Trump already has

Trump would dare most anything. I wasn't referring to him, I was referring to the rest. Trump isn't the usual politician, he's a real maverick.

Everyone but Trump wouldn't dare. But you got me. I should have made it clear that I wasn't referring to Trump, but was instead referring to the other, more run of the mill politicians.

[Nero Germanicus]

Its good for a review of recent political history. Those who don’t learn from history are doomed to repeat it.

[DiogenesLamp]

You don’t go far wrong assuming the courts will always side with the left, and that they will be factually incorrect when they do so.

[DiogenesLamp]

O.K., will do.

I very much doubt it. More like you will be out here at first opportunity with the next silly opinion of the left wing court @$$e$.

[DiogenesLamp]

Those who don’t learn from history are doomed to repeat it.

Those who do learn from history are also doomed to repeat it because they have to live in the same society as the rest of the electorate who not only didn't learn anything from history, but don't comprehend much of anything anyways.

[Nero Germanicus]

Time will tell.

[DiogenesLamp]

The Supreme Court has also said that the term "natural born citizen" is simply an adaptation to our form of government of the English term "natural born subject."

And Thomas Jefferson says they're wrong. He changed the word. It is silly to think he changed the word without intending to change the meaning.

He got the usage of the word from Vattel. Had he intended us to follow English law in defining the character as that of a "Subject" he would have used the word "Subject." He almost did, and then he remembered that we were following Vattel's natural law basis for Independence.

We got the Idea of Independence from Vattel. We didn't get it from "English Common Law", because Independence is strictly forbidden to "subjects."

[DiogenesLamp]

Time will tell.

Or not. If Cruz doesn't win the nomination, we may never know. I don't want Trump, but i'm thinking he might get the nomination.

I prefer Cruz, Walker, or Carson, in that order.

[Lurking Libertarian]

I would say "tribes" are pretty natural. What "positive law" creates them?

Tribes have rules about who's in and who's out. They make those rules; they don't find them written in the clouds.

[DiogenesLamp]

Tribes have rules about who's in and who's out. They make those rules; they don't find them written in the clouds.

You're kidding, right? Their rules are "if you are born of our people, then you are a member of our tribe."

"If you are a woman taken from another tribe, now you are a member of ours."

Pretty much the United States, circa 1787.

It doesn't get simpler than that.

[CpnHook]

And Thomas Jefferson says they're wrong. He changed the word. It is silly to think he changed the word without intending to change the meaning.

Jefferson's first penning "subject," and then upon reconsideration changing that to "citizen," comports with what Chancellor Kent later wrote:

Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.

Perhaps you can offer where Jefferson explained that these terms were so different, and if they were so different, why on earth he first choose a term so manifestly inappropriate.

He got the usage of the word from Vattel. He almost did, and then he remembered that we were following Vattel's natural law basis for Independence.

Nonsense. I've called you on this made-up claim not long ago. You've got no proof, yet you persist.

Plenty of writers before Vattel and after used the term "citizen." Montesquieu, who was FAR more influential on the framers of the Constitution than was Vattel, used the term "citizen" frequently. Jefferson's use, by itself, is no proof he's borrowing from Vattel.

We got the Idea of Independence from Vattel. We didn't get it from "English Common Law", because Independence is strictly forbidden to "subjects."

Again, you just make this sh*t up as you go along without a shred of support.

The Declaration of Independence traces its influences (there were multiple ones) back to the Magna Carta. James Otis (in an excerpt you're wont to highlight) cites as influences both John Locke (whom he lists first) and then Vattel.

You can stop this ridiculous assertion that Vattel was some singular influence on the American Revolution and Constitution any time now.

[DiogenesLamp]

Jefferson's first penning "subject," and then upon reconsideration changing that to "citizen," comports with what Chancellor Kent later wrote:

Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.

If they are "convertible terms", why bother changing it? The normal usage was "Subject." If it makes no difference, why bother?

That he changed it was not an accident. It was a deliberate point to demonstrate that the two characters were not the same. The Declaration was informed by Vattel, and so was it's intended and deliberate usage of the word "Citizen."

Nonsense. I've called you on this made-up claim not long ago. You've got no proof, yet you persist.

The proof is in the word "Citizen" itself. I've looked up all instances of it in Shakespeare, and i've looked up all instances of it in Blackstone. The normal English usage is to describe the inhabitants of a City, not the members of a Confederated Republic of independent states. (You know, like Switzerland at the time.)

The only person of that era using that word in that context is Vattel. Even your lunatic buddies over at Dr. Conspiracy's kook site acknowledge that Jefferson borrowed heavily from Vattel in writing the Declaration of Independence. (What part of English Law does "Independence" come from?)

Plenty of writers before Vattel and after used the term "citizen." Montesquieu, who was FAR more influential on the framers of the Constitution than was Vattel, used the term "citizen" frequently. Jefferson's use, by itself, is no proof he's borrowing from Vattel.

You are not helping your case. Montesquieu was French, and wrote in French too. What was that French Standard for "Citoyenship" again? :)

Again, you just make this sh*t up as you go along without a shred of support.

No, it's demonstrable that England didn't have anything in it's common law to support the idea of "Independence." The concept was absolutely forbidden. No writer could have written about such an idea in England. He would have been arrested, and If I recall properly, Samuel Rutherford (cited in the Convention notes) got into a lot of trouble form merely hinting at it.

James Otis (in an excerpt you're wont to highlight) cites as influences both John Locke (whom he lists first) and then Vattel.

John Locke does not declare a natural right to revolution and Independence. Emmerich Vattel does. No one else asserts such a right. Only Vattel. No other writer of natural law would dare say such a thing. Only Vattel.

Vattel explicitly states:

Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted.

And that led to this:

You can stop this ridiculous assertion that Vattel was some singular influence on the American Revolution and Constitution any time now.

Find someone else of that era suggesting the United States could form a Federal Republic, and perhaps you have a point. Till then, you are just caterwauling.

[Nero Germanicus]

In 2015 American Indian tribes each have different laws about the percentage of blood quantum needed to be enrolled as a tribal member.

Blood quantum laws are legislation enacted in the United States to define membership in Native American tribes or nations. “Blood quantum” refers to describing the degree of ancestry for an individual of a specific racial or ethnic group, for instance, 1/4 Omaha tribe.

Its use started in 1705 when Virginia adopted laws that limited colonial civil rights of Native Americans and persons of half or more Native American ancestry. The concept of blood quantum was not widely applied until the Indian Reorganization Act of 1934. The government used it to establish the individuals who could be recognized as Native American and be eligible for financial and other benefits under treaties that were made or sales of land.

Since that time, however, Native American nations have established their own rules for tribal membership, which vary among them. In some cases, individuals may qualify as tribal members, but not as American Indian for the purposes of certain federal benefits, which are still related to blood quantum. In the early 21st century some tribes have tightened their membership rules and excluded people who had previously been considered members, such as in the case of the Cherokee Freedmen.—Wikipedia

[Nero Germanicus]

Time will tell.

[DiogenesLamp]

Where do you get these ideas that this legal crapola has any significance? The concept of "tribe" is world wide. Virtually every racial distinction started out as a "tribe" somewhere. The Germans had tribes, the Picts had tribes, the Norwegians had tribes, the French had tribes, and so on.

In all those cases, the laws of nature were pretty apparent. If you were born of the members of that tribe, you were of the tribe. If you were taken as a wife from another tribe, you were a member of that new tribe.

Rare was it that someone from outside became a member, but in such cases, we would regard that as "naturalization."

I'll bet you that throughout human history, no tribe ever decided someone was a member merely from being born in their village.

[Tau Food]

I think that there are a lot of fascinating arguments on both sides of this question. However, I think that too many people overlook the fact that the qualifications of candidates are to be judged by the electors who select the president and by the voters who select the electors. So, whatever anyone might think, they should remember that it is important to design their arguments to appeal to those decision-makers. If the argument is too convoluted or if it fails to make common sense, then it's not going to work.

The courts have never told anyone that he can't run for president. And, they're not going to try to do that.

[Nero Germanicus]

Since this discussion is about the concept of natural born citizens in the United States and since the indigenous tribal peoples of the United States are American Indians...well, you can figure out the rest.
Who’s in an American tribe is variable since 1705.