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Katyal, Clement, and McManamon, Duggin and Collins view the phrase as "opaque" and dangerously "ambiguous" (as well as outdated, unfair, and antidemocratic), arguing that it should be excised by amendment.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.
It is a cheap campaign trick. Donnie is the one losing cred. Good grief.
You are correct, except for the name. Replace the name “Donnie” with “Ted”...
Yep - of exactly the same type, validity and force that his US "blood half" has.
-- Cruz can't possibly, by anyone's definition, be a Natural Born Citizen of the USA. --
Rhetorical cheat. citizen-at-birth, no naturalization ceremony, viola (violin, cello). It's a cheap trick, but the illusion works amazingly well. Add in the sauce that "it is settled law" (but don't show any authority), and all these smart lawyers agree, and it's a slam dunk, 90-95% of the public is duped.
-- I am still waiting to see his paperwork on when his MOTHER officially filed his `supposed' American citizenship with the Canadian authorities. --
As a matter of law, it doesn't matter if she did or didn't. He's a citizen by operation of statute. If the issue was adjudicated, the court would look for the same evidence that should have been (maybe was) presented to the Consular Office. The court could find him to be a citizen, and that would be conclusive of citizenship.
I wish it would get settled also. There are “legal” as well as non-legal experts that are all over the map on this. Now, if it does go to the SC and be settled in Cruz’s favor will that put an end to Trump and everybody else’s big mouths? No? I didn’t think so. However, if it goes the other way then it is over for Cruz, he goes home and it is a dead issue. But it will never be over if he prevails.
When Ted was in high school, he went to Britain for a school competition.
What did his mom do to get him a passport?
Did he travel on her passport?
What about the Kenyan in the WH? It sure didn’t stop him. I’m not so sure he wasn’t hatched in an underground laboratory though.
Maybe we need to assign Sheriff Arpaio to find out?
What’s more important that Obama’s eligibility is this window of opportunity.
Once things quiet down in DC, our chance is lost and the education war goes back to a period of attrition, which the leftists would win.
Two main solutions:
1. We need a constitutional amendment to maximize parental control over how their childrens’ education spending is used.
Even school choice is watered down.
And ...
2. Mandatory Debates.
It would help if professors were mandated to debate so that their dogma is tested on the public stage rather than imposed on young skulls full of mush. That’s just one way mandatory debates can help.
Education Reform
http://www.freerepublic.com/focus/chat/3381604/posts
“How then did he get a passport to travel outside the US when in high school?”
Dual citizenship isn’t a problem . . except when running for President.
Dual citizenship isn’t a problem . . except when running for President.
There are a few ways to view the question of "settled."
Looking at case law precedents, 100% say Cruz is naturalized. All of 'em, going back 200 years.
Applying the US constitution to the facts, it is "settled," Cruz is a naturalized citizen.
But, as to public perception, and what people believe, it is not settled.
I use the example of Galileo. 500 years ago it was settled that the sun orbits the earth. This was not questioned. It was so, because people believed it be so.
200 years ago, the people knew what NBC was. They certainly knew that is wasn't anybody born abroad. It was a no brainer.
That people are not so sure of this anymore is a credit to the ability of mass media to impose false belief on the public. Somebody wants you to think this is unsettled, because there is a larger benefit to them and their ilk, flowing form an ignorant and easily led, gullible public.
Maybe so. But as the article notes, there is not a consensus. (I’ve read all your posts; they are excellent, and you “might” be right...but the political reality is that there is not a consensus, and therefore, it is really impossible to say that the issue is settled at the moment). In my non-freerepublic life, I have spent much of this week trying to figure out how to respond to an administrative body which did something it had no authority to do under existing legislation. The law was seemingly settled...then...they became an aggressor, and now the law is suddenly unsettled....The point being: there is chaos around this issue of NBC. I think your arguments are better; but there is significant momentum on Cruz’s side as well. The issue isn’t settled. But politically, how this plays out is that Cruz is history.
And I don’t think that is a desirable outcome. In fact I think it’s like a Greek tragedy. But it is what it is.
The consensus before the 2008 election campaign was that to be “natural born” you had to have two citizen parents and be born within the borders of the Republic. In order to get the birthers off Obma’s neck the Congress passed a resolution declaring both Obama and McCain to be eligible for election to the presidency.
I'd rather we keep the constitution and lose Cruz, than keep Cruz and lose the NBC clause. I think that is best for the nation. But, the boss may say the NBC clause is toast. It's effectively toast now, by neglect.
After the advent of Sultan everyone on the planet is probably eligible to be President of the USA so long as the age and residency requirements are met. Citizenship is not a realistic requirement any more.
“Can one be an originalist and modernize to make mother’s status equal to husband’s?”
Would a passionate Judeo-Christian suddenly ‘forget’ the extreme importance that was given to FATHERS, all throughout the Bible, when establishing the lineage of the children?
NC poll from PPP.
This has to be adjudicated and damn soon. The Founding Fathers were not fools. It is we that define that characteristic.
Jughead has always treated us like fools, Cruz is doing the same..truly pathetic from a candidate who wants our respect, and our votes.
Hence why I see this as a Greek tragedy.
We have a great defender of the Constitution, being killed by the Constitution which is only trotted out in this one particular instance. As soon as Cruz is gone, the rest of the Constitution will continue to be ignored. And if he’s gone completely....ie, he just becomes a lawyer and a non-Senator...then one of the last speed bumps left will be gone and they can speed up their destruction of America.
Seriously...this is the stuff of tragedy.
Good question..
snip
For the first time, Cruz released his birth certificate Friday in response to inquiries
from The Dallas Morning News.
Dated a month after his birth on Dec. 22, 1970, it shows that Rafael Edward Cruz was born
to Rafael Bienvenido Cruz, a “geophysical consultant” born in Matanzas, Cuba, and the former
Eleanor Elizabeth Wilson, born in Wilmington, Del.
Her status made the baby a U.S. citizen at birth. For that, U.S. law required at least one
parent who was a U.S. citizen who had lived for at least a decade in the United States.
She registered his birth with the U.S. consulate, Frazier said, and the future senator
received a U.S. passport in 1986 ahead of a high school trip to England.
end snip
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