Posted on 04/22/2016 10:14:11 AM PDT by SeekAndFind
A Utah lawyer has appealed a lawsuit to the U.S. Supreme Court, alleging Republican presidential candidate Texas Sen. Ted Cruz is not a "natural born citizen" and therefore ineligible to become president.
Legal scholars say there is virtually no chance the high court will consider the appeal, partly because they do not want to encourage a wave of similar suits.
Cruz has faced questions about his eligibility to become president from his chief rival, Donald Trump. Cruz was born in Canada, though his mother is a U.S. citizen.
The U.S. Constitution sets only a few standards for presidential eligibility. Candidates must be 35, have lived at least 14 years in the country and be a "natural born citizen."
To some, legal vagaries exist surrounding the constitutional language. Congress has never passed a law explicitly defining the term "natural born citizen" and the nation's founding document does not specify what qualifications someone must have.
For centuries, the courts have fallen back to the British common law explanation, that a "natural born citizen" is anyone who is granted citizenship at birth and, therefore, does not have to undergo any naturalization process later in life. Traditionally, that has included anyone born on American soil and the children of American citizens born abroad.
But that definition has generally not been tested in courts because federal judges are first bound to consider whether a plaintiff has standing to bring a lawsuit. To establish standing, someone making allegations has to pass the threshold they have been personally injured in some way.
(Excerpt) Read more at upi.com ...
“Yet to the main point, the Constitutional requirement for assuming the Presidency is a specific form, or quality of born citizenship. Mere born citizenship is NOT the requirement, but rather Natural Born Citizenship is.”
Now that we’ve established that, if you agree with it or not, there have been changes to how citizenship has been awarded to people without Constitutional Amendments and that children born abroad that have at least one parent that is a qualified American citizen we move to the next point.
There are TWO legal definitions of an American. Not three.
One is where a person has been NATURALIZED. The other is NBC, where they were born as an American.
There is NO legal definition of a person that is born as an American but NOT NBC. I have seen many people on FR and other places with that OPINION but that is not the case as far as legal status is concerned.
Cruz was born in Canada with an American mother that was an NBC and met the criteria. As such he was born an NBC. Any additional legal status, such as dual citizenship, does not matter.
That’s the legal situation. NOW we can get to the crux of the matter: Are there enough registered voters that feel that situation is unacceptable in order to make Cruz unelectable assuming he gets on the ballot?
“That is also true and granted is the correct word. They applied at the consulate or to the State Department and met the Naturalization Statute requirements in effect at the time of their birth and became citizens but ...are not NBC.”
As said before, there are only TWO legal status for Americans. Naturalized and NBC. Not three.
Now, if you get enough traction to get a Supreme Court ruling or written law that could change. But as of now that’s the situation, like it or not.
SCOTUS precedents say otherwise. The precedents track the 14th amendment, which has born in the US (and subject to the jurisdiction), and naturalized. Wong Kim Ark sets this out, and applies it for persons born in the US. Rogers v. Bellei refers to Wong Kim Ark, and applies the same principle and source of law (14th amendment) to a person born abroad, finding that person to be naturalized.
While the blockquote below is from the dissent, the dissenting point it asserts is that Bellei was naturalized IN the United states, not in Italy, where he was born. The assignment of "naturalized" to Bellei is not contentious, all 9 justices agree that Bellei was a naturalized citizen. The disagreement is whether he is naturalized and IN the 14th amendment (dissent point of view), or naturalized but bot a 14th amendment citizen.
Bellei was not 'born * * * in the United States,' but he was, constitutionally speaking, 'naturalized in the United States.' Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign born children of citizens are not popularly thought of as naturalized citizens, the use of the word 'naturalize' in this way has a considerable constitutional history. Congress is empowered by the Constitution to 'establish an uniform Rule of Naturalization,' Art. I, S: 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen. The first congressional exercise of this power, entitled 'An Act to establish an uniform Rule of Naturalization,' was passed in 1970 at the Second Session of the First Congress.Rogers v. Bellei, 401 U.S. 815 (1971)
Note too that SCOTUS views the [repealed] 1790 act as an act of naturalization, despite the fact that the 1790 Act says the children born abroad of citizens are to be considered as natural born citizens.
Have a nice day. You are right, two states. Anyone that is granted citizenship on the basis of Naturalazation statutes is naturalized. The citizenship from birth is a construct not part of the constitution.
You don't like the history, so you want to rewrite it to suit your modern day preferences?
For some reason, everyone wants to "flex" the meaning instead of doing the correct thing, and amending it. This is the phenomena known as "The Living Constitution" where the meaning can be spun and massaged to achieve whatever result someone wants.
If this is the case, then it binds us into agreeing that the Dredd Scott decision was in keeping with the original intent of the framers and entirely compatible with the declaration of independence’s statement saying “All Men are created equal”.
How many slaves did Jefferson own? Wasn't it something like 80 or so? So what was the intent of the man who wrote "All men are created equal" while keeping 80+ slaves? One would think that if he intended that concept to apply to them, he would have freed his slaves, don't you think?
Ergo we can only conclude that this was not his or the other founders intent when they created the Declaration of Independence, and therefore the Dred Scott decision was mostly correct in it's statement of the law at that time.
Many contemporary lawyers, and most modern legal scholars, consider the ruling regarding slavery in the territories to be dictum, not binding precedent.
Since the constitution guarantees that slaves are to be returned to their masters, I don't see how it can be interpreted as dictum, because one would think this constitutional requirement would also apply in the territories. How could it not?
I think those who want it to be dictum simply want what they want and will ignore inconvenient truths to believe what they wish to believe.
I also have the same objection to Minor V Happersett.
You are free to object to the fact that women and men did not have equal rights in 1875, but it is intellectually dishonest to not recognize that this was indeed a fact at that time in history.
But it cannot be said that prior to the 19th amendment, the SCOTUS decision on Minor v Happersett was the right decision.
Uh, yes it can be said, because that is what the law at the time said. There is nothing wrong with the legal reasoning the judges used to arrive at their decision. You just don't like their decision because such ideas have become repugnant to modern ears. Minor v Happersett was a legally correct decision for it's time.
If we gave the SCOTUS the final say on everything, then we might as well accept and be resigned to Anthony Kennedy’s decision on gay marriage or Blackmunn’s decision on abortion rights.
43 years so far on Blackmun's faked up decision, and still counting.
Those citizens who do not need to go through the naturalization process are “natural born” citizens. As former Solicitors General Neil Katyal and Paul Clement have recently noted in the Harvard Law Review Forum,
That is a nonsense assertion. The Children of Aliens who are naturalized do not need to go through a "naturalization process." They become citizens when their parents are naturalized, and no process for these children is required.
It is a fallacy to assert that "a process" is a necessity for naturalization. In the past, Congress naturalized an entire territory, and nobody living there had to go through any "Process." The "Process" is incidental to the fact of naturalization, and the absence of a process does not preclude a naturalization.
All that is necessary for a naturalization to occur is that there be a law that sets forth the conditions necessary for it. Since congress passed the law to say "at birth" the law naturalizes "at birth." They could have said "After having been born for 1 year" , but they didn't. The point remains that the time of naturalization is irrelevant to the fact of naturalization.
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.
You are putting forth a fallacy argument known as " Argumentum ad populum" No, something is not true merely because a bunch of people assert that it is true. In this case, a reading of the actual words and and understanding of the history behind them informs us that all these so called "authorities" are simply wrong, even though there are a lot of them.
States. . . . The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law and enactments of the First Congress. Both confirm that the original meaning of the phrase “natural born Citizen” includes persons born abroad who are citizens from birth based on the citizenship of a parent.
You might think so, but you are wrong. The "Naturalization act of 1790" (Note the word "naturalization" in the title?) says that if a child has a foreign father, the child cannot be a citizen at all.
So if you are going to cite "the early acts of congress", you have just eliminated all children born to Foreign Fathers from being citizens. I believe that stipulation was recurring through all naturalization acts up until the Cable act of 1922. For 132 years, a Foreign father precluded American citizenship for a child not born in US Jurisdiction.
Because Trump would have been trumpeting it.
He did just revive the issue. Did he not?
If they had found evidence that Cruz's mother had renounced her citizenship, it would be game over for Cruz. Trump need only point to the evidence, and Cruz would be eliminated from the race.
Ergo, they did not find any such evidence.
I wish people would stop repeating that pointless mantra. The constitution only defines a single term, and that term is "Treason." As Madison said:
If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.
The US Constitution did not create citizenship. Let me repeat that. The US Constitution *DID NOT* create citizenship. Citizenship was created in 1776 by the "Declaration of Independence", and I have been doing my best to try to get through to people from whence they got this word "Citizen", and what that word meant at that time.
On that point everyone agrees except those with closed minds.
You have it backwards. It is the "closed minds" who agree on this point.
The legal definition of NBC HAS changed without amendment to the Constitution since the 1700’s.
No it hasn't. People assert that it has, but it hadn't changed by the time Minor V Happersett rolled along in 1875.
Once again, plain fact that most everyone can observe, with said exception. The current,working definition is that if either mother OR father meets the definition of US citizen then the child is born a US citizen no matter where the birth occurs.
For a US citizen Father this was true since 1790. For a US citizen Mother, this was only true since 1922. In both cases it is a "naturalization" statute that makes the child into a citizen.
I am one of those that believe that the citizenship rule should be changed so that the latter of those two situations does NOT automatically produce a citizen at birth unless either parent is a US citizen. Is it your opinion that it would require an amendment to the Constitution to make that change? I don’t.
No. "Anchor babies" were never covered by the 14th amendment. The Author of the 14th amendment makes this very clear in his speeches to Congress during this era.
Anchor Babies should not ever be considered as citizens, but because the Liberal courts have regarded them that way, people have simply been going along with an incorrect interpretation of the 14th amendment.
The man to which Madison was referring in his comments was William Loughton Smith. He was born in 1758. He could not have been a "natural born citizen" of the United States because the nation did not exist at the time.
I don’t know the particulars of the prisoner born in the USA, was he born from parents who were citizens? Had he since taken British nationalization through his parentage?
Prior to 1922, only the citizenship of the Father mattered, and when James McClure (the man in question) was born, his Father was still an English Subject. His father later naturalized, but at the time of James McClure's birth, his father was still English, not American.
The point here is that Madison (as President) supported the contention that James McClure was not a citizen, even though he was definitely born in the USA.
James Madison’s statement is part of an analysis but not sufficient on its own. I do know that he was one of the Founders that was most concerned that the Navy officers(entirely) & sailors(2/3) were composed of American citizens born on American soil so they could not be pressed by the British.
You should read the letters between James Madison and our Ambassadorial staff in France between the years of 1795 and 1812. Madison became very intolerant of British Subjects claiming American citizenship to avoid trouble with the French navy. (France and England were at war at the time.)
Madison issued orders to our Ambassadorial staff to be very strict in their scrutiny of papers or claims of American Citizenship because the French believed the Americans were conspiring with the British to allow safe passage for British agents and traders through French waters.
Madison was desperate to show Napoleon's government that the US was neutral, and that it did not condone or facilitate efforts by British Subjects to pose as American citizens.
Very interesting reading.
“Me: The legal definition of NBC HAS changed without amendment to the Constitution since the 1700’s.
You: No it hasn’t. People assert that it has, but it hadn’t changed by the time Minor V Happersett rolled along in 1875.
Once again, plain fact that most everyone can observe, with said exception. The current,working definition is that if either mother OR father meets the definition of US citizen then the child is born a US citizen no matter where the birth occurs.
For a US citizen Father this was true since 1790. For a US citizen Mother, this was only true since 1922. In both cases it is a “naturalization” statute that makes the child into a citizen.”
Please re-read that a couple of times. You assert that the legal definition of NBC hasn’t changed since the Constitution, then state how it HAS changed in 1922, and done without Constitutional amendment. That only makes sense if you hang your hat on the 3 types of citizen hook, Naturalized, Naturalized at birth and NBC.
There are only TWO legal types of citizenship recognized by law today. Naturalized and NBC. Once again, you can have your opinion but that is the current working law. If you disagree get a SC ruling or get a law passed. As of now you have neither.
However, the word "Burgess" is defined to mean "Citizen."
Bu'rgess. n.s. [bourgeois, Fr.]
A citizen; a freeman of a city, or corporate town.A representative of a town corporate.
To which you responded:
Please re-read that a couple of times. You assert that the legal definition of NBC hasn’t changed since the Constitution, then state how it HAS changed in 1922, and done without Constitutional amendment.
Sorry, but it is *you* who needs to reread the exchange between us. My response that you quoted was to what *you* had said, and I will quote what you said.
Once again, plain fact that most everyone can observe, with said exception. The current,working definition is that if either mother OR father meets the definition of US citizen then the child is born a US citizen no matter where the birth occurs.
You did not say "natural born citizen." Had you said "natural born citizen", I would not have agreed with you that the requirements have changed. The requirements have *NOT* changed for "natural born citizen", but for "US Citizen" born abroad, the requirements have changed because they keep changing the "naturalization" statutes.
That only makes sense if you hang your hat on the 3 types of citizen hook, Naturalized, Naturalized at birth and NBC.
That is only two types; Naturalized and Natural. "Naturalized at birth" is still "naturalization."
Thank you, I’ll look into that.
That the 1790 Act is a naturalization act is undeniable.
While the bill was debated in the House February 4, 1790 Rep. Aedanus Burke (SC) said, "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."
Here we see the foreign-born children of citizens where not citizens, provision had to be made for them in a naturalization statute.
Burke refers to "An Act for the further Limitation of the Crown and better securing the Rights and Liberties of the Subject"
[] no Person born out of the Kingdoms of England Scotland or Ireland or the Dominions thereunto belonging (although he be naturalized or made a Denizen (except such as are born of English Parents) shall be capable to be of the Privy Council or a Member of either House of Parliament or to enjoy any Office or Place of Trust either Civil or Military or to have any Grant of Lands Tenements or Hereditaments from the Crown to himself or to any other or others in Trust for himHere the English law itself acknowledges that the foreign-born child of English parents is naturalized.
The foreign-born children of citizens have always required naturalization.
RE: One of the Constitutional issues concerns WHO SHOULD DECIDE whether a candidate has the qualifications to be president.
Suppose there is a person, who as a baby, was brought to the United States by ILLEGAL parents. Suppose we have such a person who was made a US citizen eventually due to some executive order. Suppose further such a person grows up and became a popular politician.
Suppose further that electors ( of whatever party ) choose him to be a candidate for Presidency.
Don’t laugh. In California, illegals have already been appointed to official city government commissions. See here:
http://www.latimes.com/local/california/la-me-immigration-officeholder-20150804-story.html
Illegal immigrants are now allowed to practice law in both California and New York.
See here:
http://www.cnn.com/2014/01/02/justice/california-immigrant-lawyer/
and here:
https://www.rt.com/usa/266944-immigrant-lawyer-death-threats/
Suppose further, Principled conservatives file a lawsuit preventing such a person from running for President, arguing that only natural born citizens are qualified.
Don’t tell me the Supreme Court should rule that it has no power to overturn the decision of electors no matter how wrong they are....
If this is the case, it is possible that we might have lost the very meaning and intent of the Constitution.
Don’t tell me the Supreme Court should rule that it has no power to overturn the decision of electors no matter how wrong they are....
Suppose the Supreme Court should decide that the Supreme Court should decide who can and cannot run for president (even though the Constitution directs that electors should select our presidents) and suppose further that the Supreme Court mistakenly decides (by a 5-4 decision) that a fully qualified candidate from an opposing party is not qualified and cannot run for president. You seem to believe that Supreme Court justices are incapable of error or mischief. Justices often disagree with one another. How can that be if they are by nature free of error?
Since everyone is capable of error, there is no way to guarantee that human errors will never occur no matter who makes a final decision. The fact that someone who is exercising a constitutional power might make a mistake does not mean that the power should be seized by the Supreme Court. I trust that the voters and their electors will do at least as good a job as the Supreme Court at accurately measuring the qualifications of presidential candidates. But, it doesn't really matter who I think would do a better job. The important thing is that I think the Constitution has placed this power in the hands of electors. For more than 50 presidential elections, the electors have chosen our presidents and I can't say that they've made any constitutional errors in performing that duty.
I don't believe that the Supreme Court has ever believed that it has the power to disqualify presidential candidates. I think that they have very sensibly avoided the role that you want to give to them.
What Canadian Naturalization/Citizenship Act would apply to Rafael & Eleanor Cruz? 1946?
According to the link below, I'd say yes. I don't know the shorthand name for that act beyond "Canadian Citizenship Act", it became effective Jan 1, 1947, and was replaced in 1977. I have seen references using both 1946 and 1947 as the date.
History of citizenship legislation - www.cic.gc.ca
So far I have discovered that the word didn't mean "member of a nation" back in 1770, at least not in the English Language usage of the time. It only meant that in the Swiss usage of the time.
I think the more we can demonstrate that the source for that word is not English, but is in fact derived from the Swiss usage of the word, then we can demonstrate categorically where they got their definition of it from, meaning Vattel, Burlamaqui, and Rousseau. (All Swiss writers of Natural law, and all who used the word "Citizen" to describe the members of a nation.)
All English writers of natural law used the word "Subject." (Locke, Rutherford, Hobbes, Lord Summer's Priestly, etc)
I think this word "Citizen" is the key to linking the definition to Vattel.
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