[patlin]

We need to get away from the born here or born there argument as it simply is not the determining factor according to ALL the statutes passed on the subject.

The determining factor for ‘natural born’ is defined in the words of the 14th Amendment ... ‘not subject to any other jurisdiction’. The 1866 Statute that is the authority of the 14th Amendment states it this way ... ‘not owing allegiance to any foreign sovereignty’.

At birth, Ted Cruz owed allegiance to Canada, therefore, Ted is not a natural born citizen, he is a citizen by statute because of that Canadian citizenship. It has nothing to do with where he was born, it had to do with the fact that his father was not a US citizen. Now had his father been a US citizen, there wouldn’t even be a need of this debate as Cruz would be eligible as Canada’s laws at that time did not confer citizenship on the child unless the father had taken legal steps to either become a citizen or permanent resident of Canada, which obviously, Cruz Sr. had done prior to Jr.’s birth.

Chief Justice Waite in Minor v Happersett (1874).

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization…and that Congress shall have power “to establish a uniform rule of naturalization.”

Both the Minor (1874) & Elk (1884) cases pertained to the meaning of the 1st section of the 14th Amendment and thus we continue with Chief Justice Waite’s deciding opinion as to who the “persons” born or naturalized & “subject to the jurisdiction” are.

At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners…It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,”

And the 14th Amendment is merely the Civil Rights Act of 1866 ratified as a constitutional amendment with the 1866 Act itself remaining in tact and acting as the chief language used to enforce the citizenship laws until 1940 when Congress finally consolidated the two laws into one. We’ll touch more on this in a bit, but until then make a note that Title 8 of the US Code defining persons who were born citizens read as follows in the highlighted opening of the 1866 Act until 1940.

“All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

In the Elk deciding opinion written by Justice Gray, we find the dicta of the Slaughter-House Cases (1872) that was accepted unanimously by that court, including all the dissenters.

“[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”…Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Brad­ley in dissent from the principal holding of the case, likewise acknowledged that the clause was designed to remove any doubts about the constitu­tionality of the 1866 Civil Rights Act, which pro­vided that all persons born in the United States were as a result citizens both of the United States and of the state in which they resided, provided they were not at the time subjects of any foreign power.

Thus, the Slaughter-House dicta was adopted in the holding of the opinion in the Elk case.

[Cboldt]

I see the differrence you are pointing out, which is basically that "born in the US" has some elasticity in it; and that being boren in the US is not enough, without more, to confer citizenship.

My posts here have been simplistic and incomplete on purpose - but I genuinely thank you for sharing citations, your thoughts, and so forth. Education never stops. Just know that the words in my posts don't aim to be a sort of comprehensive analysis.

[Cboldt]

-- We need to get away from the born here or born there argument as it simply is not the determining factor according to ALL the statutes passed on the subject. --

Pondering your remarks, I think you are totally correct. I think the "technically correct" view will confuse people, but I like it.

First an analogy. People naturally view property as the right to possess. But the true nature of property is the right to exclude others. US citizenship can be viewed in a similar way.

The default is that the US will defer to some other source of citizenship. In the US, originally, this was citizenship in one of the several states. For birth abroad, if some other nation grants citizenship according to its laws, the US won't (and actually lacks the power to) monkey with it.

Looking at things that way resolves issues such as citizens on sojourn.

There may be legal customs and norms associated with soldiers abroad, too; although following the default rule, the host countries' citizenship laws have play.

Thanks for your patience and tutelage.