Posted on 01/21/2016 5:31:08 AM PST by VitacoreVision
After many years of debate, the meaning of "natural born citizen" remains unsettled.
During last week's Republican presidential debate, Ted Cruz said it's "really quite clear" he is eligible to run for president even though he was born in Canada, because his mother was a U.S. citizen. His rival Donald Trump insisted "there is a serious question" as to whether Cruz qualifies as "a natural born citizen," one of the constitutional requirements for the presidency.
Here is a sentence I never thought I'd type: Donald Trump is right. Cruz describes a consensus that does not exist.
The Texas senator is not alone in doing that. In a Harvard Law Review essay published last March, Neal Katyal and Paul Clement-solicitors general under Barack Obama and George W. Bush, respectively-say "there is no question that Senator Cruz has been a citizen from birth and is thus a 'natural born Citizen' within the meaning of the Constitution." They call claims to the contrary "specious" and "spurious."
No doubt Mary Brigid McManamon, a legal historian at Delaware Law School, would object to those adjectives. In a Washington Post op-ed piece published last week, she says it's "clear and unambiguous," based on British common law during the Founding era, that Cruz is not a "natural born citizen."
As Catholic University law professor Sarah Helen Duggin and Maryland lawyer Mary Beth Collins show in a 2005 Boston University Law Review article, these dueling perspectives are the latest installment of a long-running scholarly debate about the meaning of "natural born citizen." Contrary to Cruz, Katyal, Clement, and McManamon, Duggin and Collins view the phrase as "opaque" and dangerously "ambiguous" (as well as outdated, unfair, and antidemocratic), arguing that it should be excised by amendment.
Harvard law professor Laurence Tribe, whom Trump likes to cite, has taken both sides in this debate. In 2008 Tribe and former Solicitor General Ted Olson coauthored a memo that said John McCain, the GOP nominee that year, was eligible for the presidency even though he was born in the Panama Canal Zone.
Since the Constitution does not define "natural born citizen," Tribe and Olson wrote, to illuminate the term's meaning we must look to the context in which it is used, legislation enacted by the First Congress, and "the common law at the time of the Founding." They said "these sources all confirm that the phrase 'natural born' includes both birth abroad to parents who were citizens, and birth within a nation's territory and allegiance."
Writing in The Boston Globe last week, by contrast, Tribe said "the constitutional definition of a 'natural born citizen' is completely unsettled." He added that based on the originalist approach Cruz favors, he "ironically wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on US soil to be a 'natural born' citizen." Fordham law professor Thomas Lee makes a similar argument in the Los Angeles Times.
Satisfying as it may be for Cruz's opponents to see him hoist by his own interpretive petard, this way of framing the issue is misleading, because the debate about the meaning of "natural born citizen" is mainly about what the original understanding was, as opposed to whether the original understanding should prevail. Originalists such as Georgetown law professor Randy Barnett and University of San Diego law professor Michael Ramsey argue that their approach favors Cruz.
Another originalist, Independence Institute senior fellow Rob Natelson, who describes himself as an "admirer of Senator Cruz," is not so sure. "Although Senator Cruz's belief that he is natural born may ultimately be vindicated," Natelson writes on The Originalism Blog, "the case against him is very respectable."
Case Western law professor Jonathan Adler, who initially said "there is no question about Ted Cruz's constitutional eligibility to be elected president," later conceded he "may have been too quick to suggest that this issue is completely settled." I was similarly chastened to realize it's not safe to assume everything Donald Trump says is a lie.
Difference there is in international waters a child would be born without a country. Good thing Maritime law would most likely provide that the ship registry controls citizenship.
The 14th amendment did not add rights, but it did contain language that on its face required that rights afforded to one class of Citizen must apply to all. Rights are afforded to the citizenry as a whole, not parceled out here and there. Certain rights reserved for for men and others while denied to women is profoundly antithetical to any notion of equal protection of the law.
Courts often err.
This court relied on a tortured rationalization in order to assert, as the Court did here, that the 14th Amendment meant that the equal protection of the law did not necessarily apply to any already existing inequality before the law, only to a hypothetical inequality that might be enacted in the future. In other words, at least SOME preexisting inequalities were 'grandfathered' in despite the Amendment making no such provision.
This is an obvious absurdity.
In other words, at least SOME preexisting inequalities were
‘grandfathered’ in despite the Amendment making no such provision.
That is a compelling way of putting it. But it is not absurd to be concerned over those who insist on traditions, no matter how strange they sound. Such as our last names being the father’s.
I’m forward thinking enough to think that Bristol Palin, for example, should have her last name hyphenated. She should be proud of the name, “Palin”. But what will her spouse think?
‘Good thing Maritime law would most likely provide that the ship registry controls citizenship.’
And military bases and embassies. But a US female tourist should not fear her child being born overseas. This should somehow be amended. And congess and state legislatures should be able to agree that so-and-so is patriotic enough to be eligible. Even if it takes a super-majority vote.
Smart here means willing to accept the truth. The NBC issue is a perfect example because it’s not really complicated unless you want it to be.
“Maybe, just maybe, all of this bickering over and investigation into Cruz’s citizenship will lead to evidence of Obama’s lack of it.”
Only with people that cannot grasp that Hawaii is one of the United States, and that Alberta is not.
And military bases and embassies. But a US female tourist should not fear her child being born overseas. This should somehow be amended. And congess and state legislatures should be able to agree that so-and-so is patriotic enough to be eligible. Even if it takes a super-majority vote.
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I am against a foreign born president. If we need to change the constitution to further define that’s fine.
No, that's the point - In such a case, citizenship is inferred from the parent, and does not normally follow the country of the ship. Especially before modern medicine, when a birth cert was a pretty optional thing.
My point in raising the question is that such a case is a long standing exception to the rule. And rightly so - It would be absurd to say the child was not native born because he was born in transit. Thus the reason for the exceptions. Thus the reason for the further definition by statute. Such a child IS Natural Born.
Change the condition: Late 1800s: A child is born to US parents on Canadian ground in transit between the states and Alaska. What's the difference? Same thing. There are obvious exceptions to 'Born on the Soil'.
‘I am against a foreign born president.’
I can respect that view. But some defectors from Communist Cuba would have made outstanding Presidents.
‘...it’s not really complicated unless you want it to be.’
This is the first time I can empathize with judicial activists. I’ve been scouring and scouring for a strong counter-point who could vindicate Cruz on this. Can’t find one that convinces me.
FRegards ....
I’ve looked into the matter pretty thoroughly and am willing to concede that a child born to a citizen father and a noncitizen mother can be natural born if there are no foreign legal claims upon the child as a result of the mother’s citizenship. Turn it around to a citizen mother and a noncitizen father, and it starts looking more shaky from an Originalist point of view, but given the current realities of citizenship law, if there are no foreign legal claims upon the child as a result of the father’s citizenship, then the result would be the same, practically speaking. The same is true of being born outside US jurisdiction. If the nation where the child is born does not make a citizenship claim upon the child as a result of being born there, then that poses no legal problem for a potential, future President as far as only being subject to US jurisdiction. That appears to me to be the original intent. Whether or not a modern court would rule on these lines is another matter.
‘I am against a foreign born president.’
I can respect that view. But some defectors from Communist Cuba would have made outstanding Presidents.
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There is only one job that constitutionally requires Natural Born. It is not a mistake, it is a rational requirement.
Same here. What I find curious about Trump is that he says he'd be doing the public a huge favor by suing Cruz over it, but he doesn't do it.
Trump says he's not in this for himself, he's just trying to do the right thing for everyone. I think he's right that we'd be better off getting this settled sooner rather than later. We're supposed to believe that as President he'd be looking out for all of us, not just himself. But he has the opportunity and is in a unique position to be able to do something for all of us right now and won't.
I still don’t think he’s legitimate.
Like, for example, that marriage traditionally requires one participant from each of the sexes?
Just to demonstrate how far the present day Court has departed from Minor v. Happersett's insistence that the Fourteenth did not create any "new" rights, the very same Fourteenth Amendment that the Court ruled did not require the State of Missouri to honor Mrs. Happersett's right to vote in the same basis as a man, now requires the State of Missouri to allow men to marry men and women to marry women, despite the fact in 1850 Missouri, men and women had no such right. It appears that certain quaint notions held by the Court in Minor v. Happersett have now fallen away.
I don’t think courts should even have the power to determine who is eligible.
Too much power for one thing.
And no one respects them if there is a single arguable hole in their rulings.
Just wistful thinking on my part.
I see these fine patriots who escaped communism and compare them to Obama and other creeps.
But you get the last word on that.
— FRegards ....
Court ruling are FULL of holes and changing interpretations. And if courts don’t have a say in who is eligible, who does? I’m not saying I disagree with you because not only do I thinks courts should stay out of this, they think so too.
So if not to the courts, where do you go for clarity? I think it is to the public, and that is where sovereignty lies.
I think it is because his legal advisors have told him that he has no chance of getting any court to take jurisdiction, and he doesn’t want to come out of this looking churlish.
Do you think Trump has an legitimate reasons to believe the circumstances of his birth would cause Cruz to have divided allegiances?
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