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To: Nero Germanicus
Despite the two rulings (Pennsylvania and New Jersey) that actually deal somewhat with the legal issues and go in favor of Cruz, still:

The best arguments, by far, are against eligibility for Cruz.

The Pennsylvania judge mostly just quoted law review articles, especially the one from Harvard by the former and former (acting) Solicitors General (conveniently produced just in time for this election season). The Pennsylvania opinion has little or no analysis of original sources, and relies heavily on the analysis and arguments in secondary sources such as the Harvard article, without any recognition of the problems, including potential mis-use of original sources, in the secondary sources.

The Harvard article in particular has many problems. One of the big ones is that the Harvard article, after stating (correctly) that English common law is an important source for interpreting the U.S. Constitution, then completely ignores English common law and just uses English statutes as if they were the English common law, without even mentioning, let alone justifying, this sleight-of-hand.

The New Jersey judge appears to have made a more serious effort (or maybe the Cruz legal team's briefs, where the analysis probably originated, were better by that time). The New Jersey opinion uses a lot of text attempting to justify the concept that English statutes are part of the English law for purposes of interpreting the "natural born" requirement in Article II.

A major problem with this position is that the only support for including English statutes as a part of the common law comes from cases interpreting issues of state law. The states, which were basically created instantly from pre-existing colonies upon independence, naturally continued to follow the major laws of England where applicable, some by explicit legislation receiving the English law into the law of the state, and (apparently) some by judicial decision. Federal law, and federal Constitutional law in particular, is a different matter. There is no citation in the New Jersey opinion of any case that uses English statutes as a part of the English common law for purposes of interpreting the U.S. Constitution.

In addition to relying on weak support (only cases based on state law issues), the New Jersey opinion does not deal with some of the stronger arguments that the "natural born citizen" clause did not and does not incorporate the English statutes in force at the time of drafting and ratification.

For example, if the Founders created the "natural born" requirement with the understanding or intention to incorporate the statutory laws of England, then why, in the notes of the committee discussions of the drafting of the Naturalization Act of 1790, did one of the committee members state that "The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents, in the 12th year of William III." If the English statutes were already incorporated, why was Congress in 1790 drafting a law specifically in order to provide for what was already provided for in one of the supposedly incorporated English statutes?

The best arguments, by far, are against eligibility for Cruz.

186 posted on 04/13/2016 9:54:22 AM PDT by Joachim
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To: Joachim
For example, if the Founders created the "natural born" requirement with the understanding or intention to incorporate the statutory laws of England, then why, in the notes of the committee discussions of the drafting of the Naturalization Act of 1790, did one of the committee members state that "The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents, in the 12th year of William III." If the English statutes were already incorporated, why was Congress in 1790 drafting a law specifically in order to provide for what was already provided for in one of the supposedly incorporated English statutes?
Incisive. Incontestable and conclusive.
211 posted on 04/13/2016 11:11:14 AM PDT by Ray76 (Judge Roy Moore for Justice of the Supreme Court of the United States)
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To: Joachim

Perhaps another judge in another state will see things differently. However there were more than 200 attempts to invalidate the candidacy/presidency of Obama including 27 petitions submitted to the Supreme Court. They all failed.
The legal theory that Cruz’s attorneys have used is that there are only two classes of citizenship: born and naturalized; anyone who qualifies as a Citizen of the United States at Birth is also a Natural Born Citizen. Thus far that legal theory has prevailed.


216 posted on 04/13/2016 11:20:53 AM PDT by Nero Germanicus
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To: Joachim

“For example, if the Founders created the “natural born” requirement with the understanding or intention to incorporate the statutory laws of England, then why, in the notes of the committee discussions of the drafting of the Naturalization Act of 1790, did one of the committee members state that “The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents, in the 12th year of William III.” If the English statutes were already incorporated, why was Congress in 1790 drafting a law specifically in order to provide for what was already provided for in one of the supposedly incorporated English statutes?”


Look up the term “Reception Statute.” English common law was adopted on an issue by issue basis, never in its entirety. The statement of the committeee member makes sense to me as other members might not have agreed with adopting English practice on that particular point.
Just like today, the Founders and Framers did not agree unanimously on nearly anything. There were fights and arguments, compromises and walkouts. Patrick Henry refused to even attend the Constitutional Convention because [he] “smelt a rat.”
The state of Rhode Island refused to send a delegation at all
The Naturalization Act of 1790 is important to this discussion because it shows the original thinking of Framers who were in the first Congress on the issue of the status of foreign born citizens..


225 posted on 04/13/2016 12:06:59 PM PDT by Nero Germanicus
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