Posted on 02/20/2016 8:52:39 AM PST by Cincinatus' Wife
Now Donald Trump is questioning Marco Rubio' eligibility for the presidency.
In a tweet Saturday, Trump shared a video of what appears to be an attorney making a bizarre case that not only Texas Sen. Ted Cruz, who was born in Canada, but Rubio, whose parents immigranted from Cuba, is not eligible to become president.
In the tweet to his 6.3 million followers, Trump quoted a message sent to him by another Twitter user, who at the time appeared to have five followers: "@realDonaldTrump Mr. Trump...BOTH Cruz AND Rubio are ineligible to be POTUS! It's a SLAM DUNK CASE!! Check it!"
The tweet links to a video on the website of the Powdered Whig Society, a group that says it is dedicated "to the restoration and strict obedience to the United States Constitution."
The 12-minute video shows an unidentified woman who is purported to be a litigation attorney describe what it means to be a natural born citizen. She argues that both Rubio and Cruz are citizens, but not "natural born citizens" according to the Constitution, which says only natural born citizens may become president.
Rubio was born in Miami. That makes him a natural born U.S. citizen under the Constitution. But the unnamed woman in the video Trump posted says he is not a "naturalized citizen," because his citizenship is defined under Section 1 of the 14th Amendment. If not for this "man-made law," she says Rubio would have been born a "resident alien," the same status of his parents, both of whom were Cuban nationals.
The supposed attorney later goes on to call Congress using laws to change the original text of the Constitution as "ridiculous."
"In order to understand the genuine meaning of a text, we must use the definition the framer's use, otherwise texts become like Play-Doh. They mean whatever you want them to mean to get the outcome you want," she says.
Cruz, who was born in Canada to father who was a Cuban national and an American mother. Some legal scholars says that leaves his eligibility to run for president in question. But the supposed attorney makes a far more questionable case. She argues that when the Constitution was written, a woman's legal identity was subsumed into her husband's. That would also disqualify Cruz, she says, because it is necessary that he be born of a father who is a citizen.
When the Constitution was written in the 1780s, the purported attorney says all the framers knew what a natural born citizen was, using a definition provided in Swiss philosopher and legal expert Emerich de Vattel's book on political philosophy The Law of Nations. In it, she says, a child's status as a citizen is defined as being inherited from the father, and that it does not matter where the child is born.
Like his eye color, citizenship is "inherited by his parents, it's in his blood," she says. "Not an act of Congress."
Scroll down for video
I would be interested to know whether, in your view, the section I found is perhaps a useful document in establishing eligibility for the candidates in the present race.
7 FAM 1131.6-2 Eligibility for Presidency
(TL:CON-68; 04-01-1998)
a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural-born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.
b. Section 1, Article II, of the Constitution states, in relevant part that "No Person except a natural born Citizen...shall be eligible for the Office of President."
c. The Constitution does not define "natural born". The "Act to establish an Uniform Rule of Naturalization", enacted March 26, 1790, (1 Stat. 103,104) provided that, "...the children of citizens of the United States, that may be born ... out of the limits of the United States, shall be considered as natural born citizens: Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States."
d. This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.
You can't cherry pick the grammar to suit you. It has to apply to both "..a natural born citizen, or a citizen of the United States," because of the use of the commas.
For instance, consider the following sentence:
No ball except a red ball, or a green ball, or a blue ball, when the game begins, is illegal for play.
Now, which ball(s) cannot be used during the game?
So, to answer your question "whether, in your view, the section I found is perhaps a useful document in establishing eligibility for the candidates in the present race", I say no. Absolutely no. Not only for the reason expressed above, but also because FAM misstates case law. Superior authority (SCOTUS) states quite clearly that a person who acquires U.S. citizenship by birth abroad to U.S. citizens is naturalized. The category of "naturalized" is mutually exclusive with "natural born."
I think it is confusing in the extreme to introduce the phrase "natural born citizen pursuant to a statute," as a useful term to distinguish from "natural born citizen for Constitutional purposes." The courts find that a person made a citizen-at-birth by operation of a statute is naturalized. The terminology used by the courts is less likely to create or perpetrate confusion.
Pointing out another misleading remark in the FAM, when SCOTUS has viewed the 1790 act, it classified it as an Act of naturalization, the "NBC" language in the act notwithstanding.
Thank you! My forays into the legal world are a work in progress. Resuming the struggle...
Cruz does so with the Zivotofsky v Kerry case, citing only the "useful" part of Thomas's concurring opinion.
On Zivotofsky v Kerry - 13-628 (2015)
I think the most likely reason for the appearance of "natural born citizen" in his opinion is that Thomas lazily adopted the terminology in State Department materials. Although the thought has crossed my mind that he may have used that as a honey-pot, to encourage a person born abroad to litigate a presidential eligibility case.
If you click through and read all of Thomas's opinion (not just what I excerpted), you will get a completely different impression than you get from "[Congress] has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process. 8 U. S. C. S:S: 1401(c), (d), (g)."
I never disagreed with this, in fact, it is one of the very foundation stones by which this nation & its constitution was built upon. I have read & studied Locke, I have read & studied Cicero, I have their works in my library!
“Tis plain,” says he, :by the law of right reason, that a child is born a subject of no country or government. He is under his father's tuition and authority, till he comes to the age of discretion; and then he is a freeman, at liberty what government he will put himself under; what body politick he will unite himself to.”
And Locke also states in, ‘Of Civil Government, Ch. VI’, “Thus we are born free, as we are born rational; not that we have actually the exercise of either; age, that brings one, brings with it the other too. And thus we see how natural freedom and subjection to parents may consist together, and are both founded on the same principle. A child is free by his father's title, by his father's understanding, which is to govern him till he hath his own.”
And I could go on quoting Locke where the husband/father is the master of the family, directing the path of the family and the society that his family is a member of. As you are well aware of, Locke's works on government begin with quite extensive look at how men have abused the nature & relationship of men, women, children & society of Adam & Eve as established by God. From the beginning of creation, it has been the woman who took upon herself the character of her husband by the taking of his name. In Hebrew, the word for name is ‘shem’ which also means ‘authority’. So even though the British themselves, eventually cast off the feudal doctrine of perpetual allegiance, it was one that our nation has never adopted, hence the reason for what is called the 2nd revolution, that war of 1812 with the British, to forever make it known to great Britain and the world, the free man's right of expatriation.
Briefly summarizing, both Blackstone and Wilson see the rule of jus sanguinis as one of naturalization, granted to the parent as a privilege. Jus sanguinis citizenship is not claimed to be something arising by nature, and it is argued that (despite British law of the era to the contrary), should not impose any sort of citizenship commitment to one’s progeny or posterity.
And so to this you are wrong, it is the citizens and their children, that the ‘natural’ increase of our society are derived & preserved, “...at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects...with none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.” CHISHOLM v. GEORGIA (US) 2 Dall 419, 454, 1 L Ed 440, 455 @DALL 1793 pp471-472”
As the former quote of Locke above states, children inherit the title of their fathers, one title being that of citizen and although it is not perfected until the child comes of age and acts upon it, it is none the less an inalienable right of that child to preserve for future generations that noble title & character of their father, which is that of a ‘citizen’ of the society in which the child was born. “Jus sanguinis”, right to inherit by blood, the citizenship of the father, it is not a perpetual right, but a right that at the coming of age, the government has no authority to bestow or deny should the child choose to continue in the political character of his father that the child had been raised, educated and trained to assume.
And my apologies for not including the fact that I was quoting another legal authority. I will apply better due diligence in the future.
As for how the US government sees it, and in particular how the courts see it, look to the decisions of the US courts. They support your contention to an extent (children follow the father), but citizenship without a place is nothing more than ancestry, and the US principle of citizenship is that the place governs, with any right of descent being granted by statute, not by nature.
Please show me where Wilson defines citizenship as ‘jus soli’?
The question is not "defining citizenship," it is distinguishing between citizenship conferred naturally, and citizenship conferred by naturalization. Both forms exist, both forms are defined. An excerpt of Wilson was blockquoted for the benefit of readers, in post 380. The blockquote states the proposition that citizenship to those born abroad (absence of jus soli) is via naturalization.
See too, The Works of the Honourable James Wilson, L. L. D., Vol II, Chapter XI. Of Citizens and Aliens.
I suggest reading the entire chapter. The issue of naturalization is probed starting on page 448. The British wanted the colonists to be citizens of Great Britain, and they were considered to be so by dint of perpetual allegiance and naturalization, they did not want the colonists to have a right to hold office, and so "no subject naturalized can be a member of parliament." & c.
“The law of nature, when applied to states or political societies, receives a new name, that of the law of nations. This law, important in all the states, is of peculiar importance in free ones. The States of America are certainly entitled to this dignified appellation. ... “
And what was the volume of the Laws of Nature and Nations that the members of the Constitutional Convention, including Wilson, looked to when drafting the Constitution? Vattel’s Laws of Nature & Nations.
Wilson Works, Vol. I, Chapter VII: ‘Of Man, As A Member Of Society’ p.p. 313-314
“But, notwithstanding this train of thought and reasoning, there are certainly cases, in which a citizen has an unquestionable right to renounce his country, and go in quest of a settlement in some other part of the world. One of these cases is, when, in his own country, he cannot procure a subsistence. Another is, when the society neglects to fulfill its obligation to the citizen. A third is, when the society would establish laws, on things, to which the original social compact cannot oblige the citizen to submit. (note ‘p’ Vat. 96. b.1.s.223-225)”
Vattel 223: ‘Cases in which a citizen has the right to quit the country’; 224: ‘Of emigration’; 225: ‘Sources of their right’. And these all fall under Chapter XVIII, ‘Of the establishment of a Nation in a Country’
In regards to the citizens of the nation established, it is written in Sec. 215, ‘Of children born of citizens in a foreign country’: “It is asked, whether the children born of citizens in a foreign country, are citizens? The laws have decided this question in several countries, and it is necessary to follow their regulations. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (S.212); the place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him; I say of itself, for civil law, or policies may order otherwise, from particular views. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant, and his children are of too.”
And this is especially important as we are speaking of the time of the adoption of the Constitution, not that of the 14th Amendment which made no change in the definition of ‘citizen’ as one whose exclusive allegiance is to the United States. One cannot be made to have allegiance to 2 nations at one time, neither at birth, nor upon naturalization. This is natural law from the time of creation, natural law the founding father's embedded into our Constitution. Natural citizenship through that of the father, all others not being natural citizens, are therefore, naturalized by some statute of Congress.
This is the reason the 1790 Act was repealed and replaced, thereby, removing the phrase ‘natural born’. Natural resides in the citizenry, not in the government the citizenry established. The government was given authority over immigration and naturalization, they were not given authority to deem as citizens the children of citizens. If that be the case, then there is no such thing as natural born citizen.
Which one of them said that Great Britain didn't apply perpetual allegiance?
I'm pretty sure my remarks were correct, and you are erecting a strawman.
No matter. Bye.
No it might, but Cruz’s bigger problem is that he isn’t a natural born citizen.
You also seem to be having trouble comprehending what I wrote, that it WAS Great Britain that applied the feudal ('jure corona', or 'lex prerogative' - right of the king as the sovereign & his 'jus soli' perpetual allegiance), to this there is no dispute, not with Wilson, not with Tucker, not with Blackstone himself. It was a feudal concept, feudal law being that of a tyrant, not of a free society and therefore rejected by our founding fathers as evidenced in the laws of Virginia of 1779.
“Jus soli” is a feudal doctrine, “jus sanguinis” follows the laws of nature & nations.
50 Mich. L. Rev. 927 1951-1952 : "The result of the principal case is to limit the category "natural born" to those who become citizens under the doctrine of jus soli; this makes it co-extensive with the term "native born." Of importance in this problem is whether these children took the nationality of their parents at common law, for if they are citizens by virtue of their birth and without the aid of statute, then certainly they are "natural born" and not "naturalized" citizens. In most continental European countries the doctrine of jus sanguinis is applied. England follows the same rule, both by virtue of the common law and under a declaratory statute of 1350 guaranteeing such application. As a result, it is generally concluded, despite occasional dissent, "that jus sanguinis was the common law doctrine. (8 1 Willoughby, The Constitution §202 (1922); Flournoy and Hudson, Nationality Laws (1929); Harvard Research in International Law on Nationality, 23 AM. J. INT. L., Spec. Supp. 80 (1929)."
66 Harv. L. Rev. 707 1952-1953 : "For most purposes, it is not necessary to determine the method by which citizenship has been acquired. But the problem of whether a citizen is natural born or naturalized is important in such areas as denaturalization, expatriation, and qualification for certain offices such as the presidency. (For a discussion of the distinctions made in expatriation, see pp. 739-42 infra.)
When a person is a citizen by jus sanguinis, is he natural born or naturalized? The answer. To this question will determine the applicability of certain expatriation provisions and the citizen's qualification for the presidency. Some courts, relying on dicta in United States v. Wong Kim Ark equating natural born with native born, have indicated that those who claim citizenship solely by parentage are naturalized citizens. But this conclusion seems opposed to the common law concept -which may be assumed to be written into the constitutional requirements for the presidency 'that jus sanguinis confers naturalborn citizenship. (See 5o Mich. L. REV. 926 (1952).)
Therefore, it is you who is making the strawman argument in your haste to defend a position in which you have no case law from which to support such a defense; that our founding fathers adopted ‘jus soli’, a feudal law of the kings as sovereign, as the basis for natural born citizen. This is absolutely absurd!
Just what part of "the sovereignty lies within the citizenry & not the government is so hard for you to comprehend?
Joseph Story: “In the first place, then, every word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss.”
Common sense seems to have eluded you in your quest to interpret the Constitution & its definition of citizenship, both at birth and upon naturalization, based upon the right of expatriation ... “No man can serve two masters, for he will either hate the one and love the other, or he will be devoted to one and despise the other.” A law of nature that all, Locke, Cicero, Wilson & Tucker agree upon and that law inherent in men, then it devolves upon the government to protect that right of nature.
Shalom
“Now Donald Trump is questioning Marco Rubio’ eligibility for the presidency.”
Why not? Its true. Marco is little better than an anchor baby. Cruz is not eligible either. That being said I announced early on I was not getting involved in another birther argument because the courts didn’t stop Obama and they are not going to stop Cruz and Rubio. But that still does not make them natural born citizens and if Trump wants to play on it fine by me.
In his composition titled “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, 1774”, James Wilson summarizes the English law of the time thusly ...
Written in 1774, while the colonists were still ‘subjects’, therefore, it was proper & fitting of a respectable ‘subject’ of the ‘sovereign king’ to give preference to the laws of the king, feudal laws such as ‘jus soli’ ... all born within the king’s realm owe perpetual allegiance to the king. British feudal law, with the king as sovereign, allegiance is attached to the soil the king rules over, thus all born on his soil, owe a perpetual duty of allegiance to him by the mere circumstance of birth. It has nothing to do with choice, subjects do not choose their masters, masters choose their subjects. And when the ties of the master to his subjects are severed, so is their allegiance to his soil & to him.
Nice try though
Absent the statute, and referring only to the Constitution (14th amendment), the person born abroad of two citizen parents is not a citizen. Under the law (constitution plus Acts of Congress) a person born abroad is presumed to be an alien. Following the authorities in order of superiority, the constitution comes first - it does not make persons born abroad into citizens. Next in order of superiority comes an Act of Congress, which is necessary to make them a citizen. The fact that their citizenship depends solely on the statute is what makes this person a naturalized citizen. This rule, stated in WKA and Bellei, is the same rule even though the circumstances of birth (one citizen parent vs. two citizen parents) are different.
There is good reason for few cases, if any, for a 301(a)(3) baby, compared with for a 301(a)(7) baby. The US presence/residence requirements are minimal for two citizen parents (no term of years, such as for 301(a)(7)); and the citizenship stripping provision of 301(b), which is what brought Bellei's case into existence, only plays for the one-citizen parent circumstance. Nobody sues for GETTING citizenship (well, Kawakita maybe), the suits and cases come into play when citizenship is denied or taken away.
Some of your claims that I am wrong depend on you reading my remarks as a definition of "natural born citizen." But I have not endeavored to expound on the case of a person born on US soil. What I have been writing about is Cruz's case, and the fact that US law under the constitution and case law precedents sees ALL persons born abroad, if they be citizens, to be naturalized citizens.
Citizenship: Expatriation: Distinction between Naturalized and Natural Born Citizens
Gordon I. Ginsberg
Michigan Law Review
Vol. 50, No. 6 (Apr., 1952), pp. 926-929
His conclusion (viewable at p929) that persons made citizen-from-birth by operation of a statute are "natural born" was rejected by the Bellei court, about 19 years later. Bellei was involuntarily expatriated, and this could only be allowed or only happen if Bellei was naturalized.
I believe Mr. Ginsberg would have sided with the dissent in Bellei, which also did not want to adopt a restrictive reading of the 14th amendment, and would have construed the phrase "in the US" as meaning "anywhere in the world" for purposes of naturalization. I do not believe any sane person seriously argues that the 14th amendment should be read as "All persons born or naturalized anywhere in the world ..." I take the Bellei dissent as arguing for a construction of "All persons born in the United States or naturalized anywhere in the world ..."
That sets aside how to construe "and subject to the jurisdiction thereof," which can be taken as either local temporary duty to follow the law (as the majority in WKA did), or as political allegiance, not owing allegiance to any foreign power.
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.