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

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.

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.

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

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.

*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.

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.”

Imply: Exactly right. And that’s why the bamster was eligible too. His mother was a U.S. citizen (and daddy Frank too!). Doesn’t matter where she birthed him.......

Hillary, is that you starting this birther thing again???/sarc

You mean this definition:

nat·u·ral-born

adjective

adjective: natural-born

having a specified innate characteristic or ability.

Notice the word innate?

Which means they didn't rule on what an NBC is, so it's not a precedent in any way.

Didn't say it was, but there is no dispute that a child born of two citizen parents on the soil of their country is Natural Born, there are disputes otherwise.

Please argue why it take a statute to create a citizen when there is no need to when the child is born as a described.

BTW, I am not arguing that Cruz is unfit for POTUS, I will vote for him if he gets the nomination.

Obama destroyed any notion of NBC, fight fire with fire.

There is no such thing as "citizenship," in nature, because nature does not create nations or boundaries. "Citizenship" is always and everywhere a creation of positive law.

The Framers do not agree with you:

James Madison:

http://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships5.html

Ted Cruz’s mother is a natural born citizen which makes him a natural born citizen.

Apparently having a mother who is a natural born citizen means nothing to those who like to stir the pot of silly.

What is the point of this? Disputing or discussing his eligibility too long has been stated as a reason for removal from the site, by decree. It’s not as if any real challenge to it can happen here, even if the contrary opinion was important enough for McCain, when he was running, to secure a declaration that he is a natural born citizen though born in Panama.

IN CONGRESS, July 4, 1776. The unanimous Declaration of the thirteen united States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The US Constitution make many references to Citizenship as well as NBC in this Country, I can't believe you would make such a lame argument.

Maybe not you, but others have tried to cite it as a precedent, and ignore the second half of the paragraph.

No, I have never cited it as precedent, but it the closest thing that I know of that there is to give definition to the term.

Bills of Attainder are not defined, ex post facto is not defined, well regulated as well as we the people is not defined either.

But as H v M pointed out, we must go back and study the nomenclature, or semantics of the words that were used at the time.

NBC had a very specific meaning, one that was to eliminate all possible loyalties of a POTUS having bias toward any other then America.

I have studied this intensely, for a long time now, it, IMO, is the INTENT of the Founding Fathers.

From the Naturalization Act of 1790 (from Wikipedia):

“The Act also establishes the United States citizenship of certain children of citizens, born abroad, without the need for naturalization: “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: provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States”.

Notice that embedded within this clause is a definition of what the founders considered to be a “natural born citizen” which is “children born of citizens of the United States”.

The only time “natural born citizen” was used in the Constitution — when stipulating requirements to be President.

This Act is well-known, but was but was not mentioned in this article. And, some people claim that an expert is needed to understand it. Of course, the Act has been replaced a number of times; but it contains a definition of what the framers had in mind about the “natural born citizen” requirement.

I realize that it’s neither legal nor logical, but my top argument is this:
Dems, you foisted 0vomit on us with no known existing birth certificate and a host of legitimate doubts about his real identity and eligibility (not to mention his utter lack of accomplishments). Now we have a competent, qualified, America-loving candidate with real accomplishments and a demonstrated track record. Up yours.

Of course, the Act has been replaced a number of times; but it contains a definition of what the framers had in mind about the “natural born citizen” requirement.

More than likely it was merely to correspond with the Constitution's grandfather clause and be of limited duration since they repealed that naturalization act in it's entirety just 5 years later without the natural born provision.

The Naturalization Act of 1795,
Section 4
And be it further enacted, that the Act, intitled, "An act to establish an uniform rule of naturalization," passed the twenty-sixth day of March, one thousand seven hundred and ninety, be, and the same is hereby repealed.

There is nothing to show the Founders had long term intentions to allow people born overseas who were not in service to the country to be Natural born citizens.

H. Brook Paige v. James Condos, Secretary of State of Vermont and President Barack Obama: Robert R. Bent, Presiding Judge
“While the court has no doubt at this point that Emmerich de Vattel’s treatise The Law of Nations was a work of significant value to the founding fathers, the court does not conclude wthat his phrase–“The natives, or natural born citizens, are those born in the country, of parents who are citizens.”–has constitutional significance or that his use of “parents” in the plural has particular significance. Thus far, no judicial decision has adopted such logic in connection with this or any related issues. In fact, the most comprehensive decision on the topic, Ankeny v. Governor of Indiana, examines the historical basis of the use of the phrase, including the English common law in effect at the time of independence, and concludes that the expression “natural born Citizen” is not dependent on the nationality of the parents but reflects the status of a person born into citizenship instead of having citizenship subsequently bestowed. The distinction is eminently logical.”—Vermont Superior Court, November 14, 2012

“More than likely it was merely to correspond with the Constitution’s grandfather clause and be of limited duration since they repealed that naturalization act in it’s entirety just 5 years later without the natural born provision.”

“More than likely”?

The natural born language is written into the Constitution. There is a procedure for amending the Constitution and it has NOTHING to do with naturalization requirements. Laws of naturalization can not change the Constitution.

What the framers wrote into the Constitution showed what their long-term intentions were. It was a carefully written and much debated document.

His mother is a US citizen.

You missed that part.

Plus, do you really think that they would permit an election to go forward without a candidate on the republican side?

Or are you suggesting that a president-elect Cruz would be ruled ineligible and then the losers would become the victors? It doesn’t work that way.

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