Ping to # 34 and # 61 .
Ping to # 34 and # 61 .
The Supreme Court is really the weakest link in the Constitutional system of checks and balances and if we ever did get to a Constitutional Convention or an Amendment process, some attention should be to eliminating political influence on the Court.
Having studied Con Law extensively over the years, I have a long laundry list of cases where the Court has simply rewritten the Constitution to conform to political demands of the occasion. In my view, Jones & Laughlin Steel (redefining the Commerce Clause power) is the most egregious example but some of the recent decisions (Obamacare; King v. Burwell for example) are as bad if not as broad in application.
Whether we like it here or not, the Article II Sec. 1 provision with respect to Natural Born Citizenship is subject to dispute as to application.
If one were looking at the founder intent, there is in fact a pretty clear record in the form of a letter from John Jay to George Washington which is the source of the existing clause.
In that letter, Mr. Jay expresses concern that a person might be born in Canada; later become a US Citizen; and because of the Crown sovereignty over the place of birth, declare the head of state of the United States subject to the sovereignty of the Crown.
The stuff about parentage of the person; the history of the citizenship of the parents; the rest of this stuff may well be elements that we would like to incorporate in the test--but there just isn't any basis on which to argue that they have anything to do with the provision in the Constitution. Among other things, there is significant dispute as to whether the founders would even have had access to the edition of Vitel from which these kinds of topics might be argued to originate. And even if they did, there isn't any reason to argue that any of these factors had any bearing on the words chosen.
Changing the word "subject" to the word "citizen" is a nice touch but mechanically, should not make any difference based on the actual history we have nor in application of the clause--no reason a person born outside the realm would not have been a natural born subject given the right facts.
That analysis is complicated by the fact that the Court has regularly said it is not bound by legislative history and will decide this kind of case on the meaning of the words--doesn't mean it doesn't cite history in support of its decisions where the history supports the Court's decision either.
The literal words, "natural born citizen" say specifically citizen by birthright when born. Doesn't say can't get that birthright citizenship under the naturalization citizenship statutes.
That's just the argument in favor of Senator Cruz position. It might or might not be successful.
The reason to speculate that he may win with that argument is that it is consistent with what seems to be the basis on which the Court decides these kinds of issues.
This is a political question; the Court is now acting as a political policy decision authority.
So when you look at the basis for those kinds of decisions, you can see that political opinion statements like the recent New York Times article (making the case that the natural born requirement should be eliminated outright) are pretty clear definitions of the political considerations.
When you couple that with the fact that the Constitutional Law Bar in DC presently tends to the view that Citizenship at Birth passes under the clause, you can get pretty comfortable with the opinion that is where the Court is likely to come down.
Free from doubt? No. Poor judgment on Senator Cruz's part to get this far without getting the issue resolved where he looks to have had the opportunity and leverage to get it resolved in his favor where he might not now have the ability to do so? Probably.