Posted on 01/18/2016 8:21:28 PM PST by SeekAndFind
While the nation's legal scholars differ over the exact meaning of the Constitution's requirement that a person must be a "natural born citizen" to become president, they're unanimous in saying Ted Cruz is wrong about an important point.
"As a legal matter, the question is quite straightforward and settled law," Cruz has said. "People will continue to make political noise about it, but as a legal matter it is quite straightforward.
In fact, the experts say, it is neither settled nor straightforward.
It's not settled -- because the Constitution does not define "natural born," a phrase that appears in the nation's founding document only once.
And though the federal courts have chewed on it from time to time, the U.S. Supreme Court has never officially said what it means.
It's not straightforward -- because at the time the Constitution was written there were different ideas about what the phrase meant and competing legal theories about where the power to confer citizenship came from.
The meaning of the term is so unsettled that scores of constitutional experts have been writing about it in the weeks since Donald Trump made it an issue in the 2016 campaign.
(Excerpt) Read more at nbcnews.com ...
Gray has no reason to probe the definition of NBC, so his remarks on that are an indulgence. Even then, his conclusion depends on making British statute somehow the operative rule under US constitution, by way of analogy. The British laws granting NBS to person born abroad were radical departure. But, they are what they are, British statute, and there is no parallel in US constitution or its history.
You have to conclude that the 14th amendment somehow affects or defines NBC by implication. It is this conclusion that I reject.
But, in the case of persons born in the US, I will agree, the question of NBC is unsettled. The definition I offered is perhaps an expression of my wish of how things should be. I would have to study WKA and other materials in more detail to defend my ground, and since this is just a chatroom, I'll give you a contingent win.
It will come up if Rubio gets traction, we may meet again, and we can hash it out with care.
I’ve seen it. Thank you for posting it, though, so that it will be available for others to see also.
The Conservative Treehouse has some good posts up now about our friend, Ted. There’s some very enlightening information/ links in the comments- as always.
Not to go OT (Sorta. It’s the only new thing I have to offer this mornin), I came across this article from October 4 2013 in Forbes, earlier today
Ted Cruz’s Shameful Betrayal of Texas
Little did they know. . .
He’s a natural born citizen of the United States. Whatever his status is or was in Canada is irrelevant.
No, he’s natural born — by the very act you cited.
Nobody thinks otherwise except a few partisans who are scared of him.
No he isn’t. The Canadian NBC status is just more evidence in a growing pile of evidence that all seems to suggest that Ted Cruz is not a NBC of the United States.
Incorrect. The 39th Congress makes clear that the citizenship clause of the 14th Amendment is merely a declaration (restatement) of the existing law. So Gray rightfully looked to the common law meaning of "natural born citizen" to inform the meaning of "born . . . in the U.S, and subject to the jurisdiction thereof." I laid this out in detail in my post; perhaps you didn't have time to read it carefully.
So the meaning which the Court finds for "natural born citizen" ("all persons born in the U.S., even to alien parents, are natural born citizens" -- noting this is the "same rule" as adhered in England) goes to the core rationale (ratio decidendi) of the decision, as it's that meaning which the Court then ascribes to the 14th Amendment (with the same qualifications for children of ambassadors and hostile occupation as with the common law).
Even then, his conclusion depends on making British statute somehow the operative rule under US constitution, by way of analogy.
I'm not following this point. Gray doesn't discuss any English statutes in Parts II and III of the opinion where he analyzes the common law meaning of NBS and NBC for the native-born. (Obviously, common law (judge-made law) and statutory law are distinguishable.) In Part IV he discusses both the English and American statutes pertaining to the status of foreign-born children, but I hadn't touched on that in the above posts. That's the Bellei/Cruz issue.
You have to conclude that the 14th amendment somehow affects or defines NBC by implication. It is this conclusion that I reject.
There's no "by implication" here. Gray explicitly states that the 14th Amendment "defines" in part (or "restates" as he later phrases it) the original Constitutional term "natural born citizen.":
The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States."
* * *
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.
Gray treats the 14th Amendment as having incorporated the common law meaning of "natural born citizen." As I've noted, in this respect he follows the lead of the 39th Congress. House Judiciary Chairman James F. Wilson, reported at length on the relationship between the legislation (here the citizenship clause of the C.R.A.) and the existing law:
This provison, I maintain, is merely declaratory of what the law now is. This, I presume, would not be disputed if the language were qualified by the presence of the word "white." In the absence of this word, I am sure that my proposition will be disputed by every member of this House who believes that this Government is exclusively a "white man Government." I think this question of sufficient importance to justify me in giving it something more than a mere passing notice. Blackstone says:
"The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the Crown of Englnd: that is, within the ligeance, or, as it is generally called, the allegiance of the King; and aliens are such as are born out of it." Sharswood's Blackstone, vol. 1, p. 364.
The principle here laid down applies to this country as well as England. It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, "founded in reason and the nature of government."
* * *
"It is in vain we look into the Constitution of the United States for a definition of the term "citizen." It speaks of citizens, but in no express terms defines what it means by it. We must depend upon the general law relating to subject and citizens recognized by all nations for a definition, and that must lead to a conclusion that every person born in the United States is a natural born citizen of such States, except it may be that children born on our soil to temporary sojourners or representatives of foreign Governments are native born citizens of the United States. Thus it is expressed by a writer on the Constitution of the United States: "Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity." Rawle on the Constitution, pg. 86." Rep. Wilson. Cong. Globe, 39th Cong., lst Sess. 1115 - 1117 (1866).
But, in the case of persons born in the US, I will agree, the question of NBC is unsettled.
I'm not sure if you meant here to speak of foreign-born children. That's the area of the law which is considered unsettled. It's settled law that native-born persons are NBC (with the observed two qualifications). It's settled that persons born abroad as aliens who later come to the U.S. and are naturalized are not NBC (e.g., Kissinger and Ahhnold). It's the "middle ground" (Geo. Romney, McCain, Cruz) where the debate has centered.
The definition I offered is perhaps an expression of my wish of how things should be.
And that's understandable. But as a historical/legal proposition, you were staking out a position that is not defensible. I think that wishfulness often stems from the emotional reaction to "anchor babies" and then gets projected back to color views of a time when such a concept didn't exist.
You’re simply wrong. There is no issue here. This is just a straw man erected by the Trump-Rubio-GOPe alliance because they know that Ted is the one candidate who can take down all of them.
I appreciate all the work you did, and may read it later. For now, as I noted, I conditionally concede defeat, until a situations comes up that prompts me to get interested enough to study the details.
First, I am glad that we agree that both of us would enthusiastically support Trump, Cruz, or whoever the Republican nominee is to prevent the disaster that would occur should the Democrats keep the presidency.
It really does not matter at this point what you or I think about the documentation surrounding Obama’s birth. However, the controversy was won largely not on the merits of the arguments but largely through ridicule, accusations of racism, and the threat that the fight would not be looked upon favorably by the public regardless of the outcome. By your use of ridicule you seem to acknowledge these facts. If Cruz does not have a problem here, if the arguments will stand on their own, there is no reason to use nasty tactics. It only will bring up painful memories and cause hard feelings. It is not productive.
Most people will never understand the finer points of the controversy about whether or not Cruz is a natural born citizen, but they do understand one thing quite easily... he was physically born in Canada to persons who were legally residing there at the time. He was born a legal Canadian citizen. That is a fact and his birth certificate proves it. Because his mother was a US citizen he was eligible to apply for citizenship from the United States... whether his parents filed this required paperwork is a mystery because records other than his birth certificate remain sealed.
I learned in school as did a great many others that the reason the founders insisted that the president be a “natural born citizen” was to prevent a person with “divided loyalties” from becoming our nation’s leader. Cruz did not renounce his Canadian citizenship until after he decided to run for president. By doing this he acknowledged that divided loyalties were a problem for his candidacy.
But again it does not matter what I was taught about this in school or that Cruz through renouncing his Canadian citizenship has acknowledged this is an issue. The general perception which has been held by a sizable percentage of the electorate for centuries and will continue to be promoted by our current media is that a person born outside the country cannot be president. This perception might have been changed if Obama had freely admitted something he claimed for most of his adult life... that he was born outside the country, but when push came to shove through whatever means he managed to provide official documentation that showed he was born in Hawaii.
Through your use of the term “birfer morons” you obviously are concerned that the arguments about Ted Cruz’s eligibility cannot stand on their own. You believe that the tactic of ridicule will work for Ted Cruz to win this argument. I seriously doubt that it will. Cruz is a completely different animal than Obama. First he is not black. Second, he is perceived by much of the electorate as mean spirited to begin with. Use of nasty ridicule by his minions will only tend to reinforce this perception and will only hurt his candidacy in the long run which I do not want to see because I believe there is a good chance he will be our Republican candidate.
I believe that Senator Cruz needs to get official clarification on this as soon as possible from the courts and from the Republican establishment. This is not a fight between Trump and Cruz... it is Cruz’s problem and Cruz needs to put it to rest now. If he does not it will cause further damage to our chances to keep the Democrats keeping the presidency.
As far as links go... you can start with this one and go from there. It came up in a Google search just now... it is the type of thing floating around the internet regardless of its merits.
https://themarshallreport.wordpress.com/2016/01/05/cruz-birther-issue-obama-all-over-again/
Give me a break. Ted’s core support is limited to a narrow slice of the Republican party and an even narrower slice of the general electorate. The only thing he’ll take down is the ship. The NBC is an issue to me btw. I do not want non-NBCs gaining control over 1/3 of our government. his foreign birth makes him a non-NBC and a threat to the constitution and the republic.
Cruz has refused to supply any documentation. What did his mother file with the US when he was born? or was it more convenient to wait until they returned to the US to file? The definition of NBC is not clear. I like many others want it to be clear. I like Cruz and he would make a great CIC. But how can I invest in a candidate that may not be legitimate?
That’s not what the numbers show.
what is definition of natural born?
RE: According to Ted Cruz’ logic, Barack Obama COULD have been born in Kenya...and still been eligible.
My personal view is this -— ASK ONE IMPORTANT QUESTION:
Do you have to go through the NATURALIZATION process in order to receive your American passport?
If not, then you are a natural born American citizen (American citizen at birth ).
If yes, then you are NOT a natural born American citizen.
So, how did Ted Cruz obtain his American passport?
The numbers show Donald Trump leading by large margins everywhere except Iowa where evangelicals exert a disproportionate amount of influence over the Iowa primary results.
As for the dual citizenship, Service in the German Military is Compulsory, but my son never received any draft notice.
I had the opposite issue in regards to my clearance, I could not travel outside of Berlin unless I jumped through a lot of hoops
I appreciate the tone of the discussion. I'm all for maintaining an irenic spirit, and you do well in that. The opposite is too often the case.
Early 70’s in Europe was interesting, to say the least. Like pulling up to a border crossing with another couple to have the guard say, why are you here - you are on alert. Like being in a foreign country with a brand new baby and having a husband who was pay officer for MP’s at Munich Olympics. Like being issued dog tags and punch cards so we could be tracked if we needed to evacuate immediately.
Small wonder that when we finally got back stateside to Dover and got bussed to Philadelphia at 2am, my first statement to the first airline counter that opened up at 6am was tickets please on the first flight to the West Coast, anywhere there.
After those three years, I have never had any desire to visit Europe again and watch in trepidation as my step-son and family feel the need to go on a tour somewhere there at least once a year.
“No, he’s natural born — by the very act you cited.”
Ted Cruz claims he acquired U.S. citizenship on the basis his mother was a U.S. citizen. The only law at the time of his birth that transmits U.S. citizenship by inheritance form the mother is the U.S. Naturalization Act of 1952. That statutory naturalization law took a child who was born abroad with Canadian citizenship and allegiance to the foreign sovereign of Canada and naturalized the child as a U.S. citizen but only if and when the parent or child perfected the right to claim U.S. citizenship after birth. As observed in Rogers v. Bellei 401 U.S. 815 (1971) :
“A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.”
Furthermore< United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. said “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.
“Nobody thinks otherwise except a few partisans who are scared of him.”
That is a false statement as evidenced by the U.S. Supreme court decisions and other Federal court decisions which explicitly state “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized....” Given this demonstrated and indisputable fact that Ted Cruz was naturalized as a U.S. citizen and such naturalized U.S. citizens are ineligible to be POTUS, it is quite obvious Ted Cruz is not eligible to be POYUS and is not and cannot be a natural born citizen.
He was a US citizen by birth. Period.
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