And yes, this is the real sticking point, right here: The argument is a legal one over whether he is naturalized; essentially over the definition of the word "naturalized."
If indeed Ted Cruz is nothing more than a naturalized citizen, then he is not now and never can be eligible for the Presidency.
So, I ask, in the absence of the statue at issue, would Ted Cruz be a US Citizen by birth according to the operation of natural law?
According to Vattel, the answer must be yes, providing the citizenship was bequeathed to him by his father.
We need to consider that today, citizen mothers are equally entitled to bequeath their citizenship to their children as fathers.
And then, there is the question of whether the children born abroad out of wedlock would inherit citizenship naturally from the mother. I contend the child would do so.
I believe that the only argument is whether or not the Constitution requires that we slavishly hew to the 18th century insistence of patrilineage - even though it is not a part of the Constitution - or whether we can accept that mothers and fathers have the NATURAL and equal ability to bequeath their nationality to their offspring. And this is quite independent of any statute.
Here is Vattel on the subject:
The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country."
I must note that the construction of Vattel's second sentence does not require two citizen parents as is often asserted. The plural 'parents' follows the plural 'natives, or natural-born citizens' in the same manner as the sentence "All the children and their parents were present," does not require or imply that both parents of each child were present.
I must also object to any interpretation that forces us to deny the right of women to bequeath citizenship to their children on the same basis as men. This is not merely a present day social norm, it is required by the Constitution, and this has nothing whatever to do with original intent.
There’s no question that he’s naturalized. Without statute he would not be a citizen.
The foreign-born child of a U.S. citizen mother in 1874 was not a U.S. citizen.
The foreign-born child of a U.S. citizen mother in 1970 may become a U.S. citizen, provided conditions are met.
Exact same circumstances, completely different outcomes.
In 1970 there was a Congressional act which provided the foreign-born children of citizens may become citizens if the terms of the statute are complied with, in 1874 there was not.
To illustrate, a child born to a U.S. citizen mother in 1874 in Oxfordshire, England was not a U.S. citizen. That child is Winston Churchill, he was posthumously proclaimed Honorary Citizen of the United States April 9, 1963 (Pub. L. 88-6)
The exact same circumstances as Cruz, the foreign-born child of a U.S. citizen mother, yet Churchill was not a citizen. Why? Because there was no statute to make him one.
And that would be SCOTUS reading crap into the constitution that isn't there, a task that it seems pretty amenable to doing, and hey, after finding homo marriage, etc. in there, it would be hard to beclown itself much worse than it already has. It's a thoroughly discredited institution already, by its own fault.
Think about what you are arguing — Vattel should be superior to the Constitution. Didn’t you take the opposite view a few days ago? I don’t follow your arguments, that’s an innocent question.
I also submit that unless the Constitution is inherently impossible of interpretation or understanding based on its own terms, such extraneous references must not be permitted, or may sometimes be permitted with little weight as set against the Constitution's own clear provisions.I submit that all the fevered and tortured bending and twisting, and all the references to this and that while perhaps entertaining are essentially nothing more than a diversion
And then @ 157, you reverse, and decide to invoke extraneous references, for the purpose of reversing the outcome you didn't like when you used the constitution.
And even then, (man, this rope is getting harder to push) you have to overlay equal rights on top of jus sanguinas on top of torturing Vattel, and haven't defined the minimum extent of jus soli that keeps the nation together, and oh my God the system works fine the way we have it now thank you very much. Congress can hand out citizenship like lollipops, at birth, to everybody. That is constitutional. The only power it lacks, is the power to expand the pool of president candidates.
Are you a judge in a court of law, perchance?
§ 215. Children of citizens born in a foreign country.
It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.
Cruz's father claimed refugee status when he left Cuba with no intention to return, and resided in Canada for several years.Thus he had *quit his country*.
While his mother may (or may not) have quit her country, she was certainly gone long enough to loose any claim to residency.
Also notice Vattel does not refer to children born under such circumstances as *natural born citizens*...just citizens.