Posted on 01/30/2016 11:10:12 AM PST by GodGunsGuts
...
The first thought that comes to mind is that Trump keeps coming back to this attack against Cruz for a couple of reasons. The first is that he cannot make attacks on Cruz's record of standing up for conservative principles the centerpiece of his strategy because that leaves him open to greater scrutiny of his own liberal record...
(Excerpt) Read more at redstate.com ...
“Obviously under modern case law, we can no longer have different legal standards for a mother vs. father, so either one or the other is enough to confer citizenship on the child when the child is born outside of the country.”
No. No offense, but that is absurd. Modern case law is utterly powerless to change Constitutional law. The requirements listed to become president are still in force as they were written into the Constitution and adopted in 1789. It is called original intent. The “natural born” concept has not changed, and any new naturalization law is still constrained by it.
For example, it was not modern case law that gave women the right to vote; it was the amendment process to the Constitution (19th).
Making political hay by these latest claims of ineligibility is damaging to the cohesiveness of an anticipated united front come November against the demoncrat candidates.
TedState speaks. Yawn
Regardless, we all know the court would never rule today that citizenship can only be given to a child by a father but not a mother. Cruz is safe from any court challenge that comes down to that.
Can Cruz really be a good SCOTUS candidate if he’s willing to lie about the Constitution in this instance?
[[You have done worn out your welcome.]]
lol- whatever- you just explained nothing except to say that anyone that doesn’t agree with those fellas you cited, or with you, is wrong- except of course that cases by the SC have indicated that they don ‘t agree- There were a couple of cases in which the SC indicated just what I explained-
Tell me, have any cases settled the matter once and for all? You at least cede that they haven’t and there’s a reason and that reason is because there is vast differences of opinion on the issue- and it really doesn’t do any good to get In a huff and say ‘case closed’ and things like ‘you’ve worn out your welcome’ when someone brings up cases which indicate the SC perhaps doesn’t agree with your position-
[[Same with the popular scholars such as Katyal, Clement, Amar, Levin, Balkin, and so on. They aren’t the cases.]]
Nope- that’s true- but their opinions on this matter are important as are the opinions of those who argue the opposite- and so aren’t the cases which indicated that at birth and by birth didn’t need an act by statute to be NBC- You might disagree with those cases, but saying things like “I’m not here to educate you’ isn’t an answer as to whether they are wrong or not-
You had me about convinced that Cruz wasn’t eligible with a phrase you cited in the other thread- before I stumbled on those cases I mentioned- so you other snide comment of “I’m not trying to persuade or educate you, you are beyond that.” is not only inaccurate (something you complained about me In the other thread- apparently it’s ok for you to do?), but it’s not very helpful at all-
[[I’m using the case law as the authority,]]
Yes, you use the Bellei case- (And that was the case and the key phrase you cited later that had me almost convinced), but later cases indicate something different- do we pick and choose which cases we wish to support our arguments and assume that is the end of the discussion?
[[It was left to Congress to set the laws to NATURALIZE. That is all.]]
I believe it was given them the responsibility to define things like NBC as well-
[[I rely on the words of the learned people of that time period of American history to shape my understanding. NOT modern naturalization law,]]
And that’s fine, the old law should be taken into consideration and the ‘original intent’ should be at least tried to be understood, but modern laws are what govern society now- the early founders had the wisdom to know that laws would necessarily need to be changed, tweaked and refined as the country grew and as new knowledge came to light
It is significant to note that in a more recent case, in 2001, the Supreme Court indicated that under
current law and jurisprudence a child born to U.S. citizens while living or traveling abroad, and a
child born in the geographic United States, had the same legal status. In Tuan Anh Nguyen v. INS,162 the Court explained that a woman who is a U.S. citizen living abroad and expecting a child could re-enter the United States and have the child born “in” the United States, or could stay abroad and not travel back to this country and have the child born abroad, and that the child in either case would have the same status as far as U.S. citizenship:
[T]he statute simply ensures equivalence between two expectant mothers who are citizens
abroad if one chooses to reenter for the child’s birth and the other chooses not to return, or
does not have the means to do so.163
http://fas.org/sgp/crs/misc/R42097.pdf
The above is what I meant about the founders and early leaders acknowledging that times change, and circumstances change, and so laws would need to evolve as well- Just because a woman travels abroad, has a child while in another country, does not mean, or rather should not mean, that the child is a foreigner- We the people are sovereigns- we no longer have one sovereign leader over us, in the sense that we are subjects of said leader- we are all each individually sovereigns and as such, just like the sovereign of England, people born under us are ours, and retain our citizenship
No they don't, and you've never accurately cited to one case that holds opposite of Bellei on that point.
Kagan, arguing to SCOTUS as Solicitor General in Flores-Villar v. United States
The United States has always applied the rule of "jus soli, that is, that the place of birth governs citizenship status except as modified by statute." Bellei, 401 U.S. at 828
And how about Justice Scalia, in Concurring Opinion in Miller v. Albright, 523 U.S. 420 (1998)
The Constitution "contemplates two sources of citizenship, and two only: birth and naturalization." United States v. Wong Kim Ark, 169 U. S. 649, 702 (1898). Under the Fourteenth Amendment, "[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization." Ibid. Petitioner, having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and "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." Id., at 702-703; see also Rogers v. Bellei, 401 U. S. 815, 827 (1971). Here it is the "authority of Congress" that is appealed to-- its power under Art. I, 8, cl. 4, to "establish an uniform Rule of Naturalization." If there is no congressional enactment granting petitioner citizenship, she remains an alien.
posted too soon-
Concerning the contention made in earlier cases that everyone who is made a citizen only by
federal statute is a “naturalized” citizen (even those who are made citizens at birth by statute), it
may be noted that the common understanding and usage of the terms “naturalized” and “naturalization,” as well as the precise legal meaning under current federal law, now indicate that someone who is a citizen “at birth” is not considered to have been “naturalized.”164
Justice Breyer, for example, dissenting on other grounds in Miller v. Albright, explained that “this kind of citizenship,” that is, under “statutes that confer citizenship ‘at birth,’” was not intended to “involve[ ] ‘naturalization,’” citing current federal law at 8 U.S.C. Section 1101(a)(23).165
The Supreme Court recently recognized in Tuan Anh Nguyen v.INS, that federal law now specifically defines “naturalization” as the “conferring of nationality of a state upon a person after birth,” 166 and thus it could be argued that by current definition and understanding in federal law and
jurisprudence, one who is entitled to U.S. citizenship automatically “at birth” or “by birth” could
not be considered to be “naturalized.”
http://fas.org/sgp/crs/misc/R42097.pdf (Page 40 of the article)
The United States Court of Appeals for the Ninth Circuit has specifically recognized in a recent case that one may be a “natural born” citizen of the United Sates in two ways:
either by being born in the United States, or by being born abroad of at least one citizen-parent who has met the
residency requirement. In United States v. Carlos Jesus Marguet-Pillado, a case dealing with the
propriety of an appeal based on requested jury instructions not given, the court stated:
No one disputes that Marguet-Pillado’s requested instruction was “an accurate statement of
the law,” in that it correctly stated the two circumstances in which an individual born in 1968 is a natural born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met
certain residency requirements.167 (page 40)
The federal court in Robinson v. Bowen thus implicitly adopted a meaning of the term “natural
born” citizen in the presidential eligibility clause which would include not only the narrow “common law” meaning (jus soli, being born geographically in the United States without reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory designation by Congress of one entitled to U.S. citizenship “at birth” or “by birth” even if born
abroad when such citizenship is transmitted from one’s parent or parents (jus sanguinis). (Page 41)
There are those of course who reject this and claim any act by congress means a person is ‘naturalized’ and therefore ineligible for the presidency, however, as stated, there is a long history of the courts finding that there is a distinction between at birth/by birth, and naturalization ‘after birth’, and the whole case hinges on these three terms- ie is ‘by birth’ the same as ‘after birth’ in regards to requiring an act of congress and a process of naturalization? Or is at birth and by birth both a function of citizenship by descent from a sovereign?
“I believe it was given them the responsibility to define things like NBC as well-”
That is incorrect. If you were to read some of the 15 attempts over the past 45 years where Congress has tried to drum up support for an amendment to Art. 2 eligibility restrictions you would have proof that Congress CANNOT define natural born Citizen as you suggest.
The Constitution is NOT a living document. Thank the Lord.
I actually did before you wrote me off In the last thread- I gave the links that show that jus soli and jus sanguinis are now both considered as NBC in that FAS.org article by CRS- there were a couple of cases In there that determined that decades after the Bellei case- my post above gives the link to the article and the cases- (They are all down around page 40 41)
You don't even acknowledge that. Convenient memory, I suppose.
[[Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828, 91 S.Ct. 1060, 28 L.Ed.2d 499]]
Page 40 of the article I linked to above- It appears they were given that authority notwithstanding the attempts you brought up
[[All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen†has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States]]
http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/
It’s getting late- if you reply, I’ll have to get to it tomorrow-
For purposes of naturalization.
Think I am wrong? Start back in 1970. Read the resolutions in Congress. The very first thing you will find is that to qualify to be “natural born” one must be “native born”. AND later resolution attempts admit that a law is insufficient, an AMENDMENT is necessary. There have been countless images posted on FreeRe - it is not we who take anything out of context.
The amendment would require a ratification - which is why it never went anywhere further than a resolution.
I’ve been at this for seven years. This ain’t about Cruz with me, so understand that first.
[[Convenient memory, I suppose. ]]
Must you?-
I addressed that In the other thread- That case, first of all wasn’t the only case- Secondly- that case specifically indicated that cases where a woman was travelling abroad, and had a baby, the baby is not a foreigner- The court made it clear that there is no difference in her child’s status as full citizen because the child is citizen via jus sanguinis-
[[[T]he statute simply ensures equivalence between two expectant mothers who are citizens abroad if one chooses to reenter for the child’s birth and the other chooses not to return, or does not have the means to do so.163]] (page 40)
[[which merely notes that some naturalization statutes include a process, and other naturalization statutes don’t]]
And the court recognized that those that don’t are afforded the status of ‘at birth’ those that do are ‘after birth’ and require an act which makes them ineligible for presidency because they aren’t considered NBC- it was ‘To ensure the equivalence of a child born in states or out to a mother who was a citizen’
[[I’ve been at this for seven years. This ain’t about Cruz with me, so understand that first.]]
You gave no indication that it was about him- I understood that you have looked into this as a matter of principle-
I’m simply citing what these court cases have indicated- the matter, as you know, having been at this for several years- has many angles to it and is something that has not been settled - there are valid arguments on both sides which is why it hasn’t been settled as of yet and my never be-
It is late- I’m too tire to continue tonight-
That's false. I'm reading Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) right now. It doesn't say what you assert it says, and it cites no other case for the proposition that you assert.
[[There have been countless images posted on FreeRe - it is not we who take anything out of context.]]
I wasn’t accusing you of that- I hope you didn’t think I was? If so I certainly did not intend to-
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.