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Trump Is Right About Cruz's Presidential Eligibility

After many years of debate, the meaning of "natural born citizen" remains unsettled.

During last week's Republican presidential debate, Ted Cruz said it's "really quite clear" he is eligible to run for president even though he was born in Canada, because his mother was a U.S. citizen. His rival Donald Trump insisted "there is a serious question" as to whether Cruz qualifies as "a natural born citizen," one of the constitutional requirements for the presidency.

Here is a sentence I never thought I'd type: Donald Trump is right. Cruz describes a consensus that does not exist.

The Texas senator is not alone in doing that. In a Harvard Law Review essay published last March, Neal Katyal and Paul Clement—solicitors general under Barack Obama and George W. Bush, respectively—say "there is no question that Senator Cruz has been a citizen from birth and is thus a 'natural born Citizen' within the meaning of the Constitution." They call claims to the contrary "specious" and "spurious."

No doubt Mary Brigid McManamon, a legal historian at Delaware Law School, would object to those adjectives. In a Washington Post op-ed piece published last week, she says it's "clear and unambiguous," based on British common law during the Founding era, that Cruz is not a "natural born citizen."

As Catholic University law professor Sarah Helen Duggin and Maryland lawyer Mary Beth Collins show in a 2005 Boston University Law Review article, these dueling perspectives are the latest installment of a long-running scholarly debate about the meaning of "natural born citizen." Contrary to Cruz, Katyal, Clement, and McManamon, Duggin and Collins view the phrase as "opaque" and dangerously "ambiguous" (as well as outdated, unfair, and antidemocratic), arguing that it should be excised by amendment.

Harvard law professor Laurence Tribe, whom Trump likes to cite, has taken both sides in this debate. In 2008 Tribe and former Solicitor General Ted Olson coauthored a memo that said John McCain, the GOP nominee that year, was eligible for the presidency even though he was born in the Panama Canal Zone.

Since the Constitution does not define "natural born citizen," Tribe and Olson wrote, to illuminate the term's meaning we must look to the context in which it is used, legislation enacted by the First Congress, and "the common law at the time of the Founding." They said "these sources all confirm that the phrase 'natural born' includes both birth abroad to parents who were citizens, and birth within a nation's territory and allegiance."

Writing in The Boston Globe last week, by contrast, Tribe said "the constitutional definition of a 'natural born citizen' is completely unsettled." He added that based on the originalist approach Cruz favors, he "ironically wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on US soil to be a 'natural born' citizen." Fordham law professor Thomas Lee makes a similar argument in the Los Angeles Times.

Satisfying as it may be for Cruz's opponents to see him hoist by his own interpretive petard, this way of framing the issue is misleading, because the debate about the meaning of "natural born citizen" is mainly about what the original understanding was, as opposed to whether the original understanding should prevail. Originalists such as Georgetown law professor Randy Barnett and University of San Diego law professor Michael Ramsey argue that their approach favors Cruz.

Another originalist, Independence Institute senior fellow Rob Natelson, who describes himself as an "admirer of Senator Cruz," is not so sure. "Although Senator Cruz’s belief that he is natural born may ultimately be vindicated," Natelson writes on The Originalism Blog, "the case against him is very respectable."

Case Western law professor Jonathan Adler, who initially said "there is no question about Ted Cruz’s constitutional eligibility to be elected president," later conceded he "may have been too quick to suggest that this issue is completely settled." I was similarly chastened to realize it's not safe to assume everything Donald Trump says is a lie.

© Copyright 2016 by Creators Syndicate Inc.

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  • SIV||

    Jacob Sullum a birther? I'm more shocked than if Nick revealed himself to be a Communist!

  • JWatts||

    So, not really shocked at all, huh?

  • Notorious UGCC||

    Why not cut through the clutter - we can amend the Constitution to say that anybody who has been a U.S. citizen for 35 years will be just as qualified to be President as if he were a natural born citizen. Natural born citizens have to be 35 years old to be President, and someone who has been a citizen that long should be eligible too.

    This will address the Founders' concerns about dual loyalties - if you have the misfortune of being born subject to another country, then so long as you've had 35 years after naturalization to wash off the foreign taint, there would be no problem.

    So Arnold Schwarzenegger, who Wikipedia says was naturalized in 1983, would become qualified to be President in 2018.

    And if we say that there are people who were citizens at birth but were not natural-born, then they would become qualified to be President at age 35 just like a natural-born citizen.

    Then we could put the retard-fights over birtherism to rest. Hopefully.

  • Notorious UGCC||

    And also, the Constitution requires that to be President (Vice President) you need to have "been fourteen Years a Resident within the United States," so that's another safeguard against foreign influence.

  • bassjoe||

    In fairness, with the interconnectivity of today's world, it does not matter where you are physically anymore... Also, we'll just start fighting over the term "resident".

  • Notorious UGCC||

    We'll always be fighting over *something,* only here's one retarded thing we could *stop* fighting about.

    And the 14 year thing has been in the Constitution since the beginning, and I'm not familiar with any birther-level retardation on that.

  • bassjoe||

    I can think of a few birther level retard arguments regarding the term "resident" (I'm not sure what that says about me).

  • Notorious UGCC||

    But can you get the media and the politicians talking about your ideas?

  • bassjoe||

    I can start memes!

  • bassjoe||

    I'm 100% in favor of any amendment which gives the Governator the chance to be the Presidentator... Presitator...?

  • Loki||

    As long as he's still hocking freemium games while president...

    For the lulz.

  • buybuydandavis||

    Presidentinater.

  • chris goodwin||

    Predator

  • Loki||

    we can amend the Constitution to say that anybody who has been solely a U.S. citizen for 35 years will be just as qualified to be President as if he were a natural born citizen...

    FTFY. As long as they've given up their dual citizenship for 35 years, I don't see an issue.

  • IceTrey||

    What if we have to go to war with the country of their birth? You don't think that may effect their judgement?

  • EscherEnigma||

    Sure it might, but so what? The people had the opportunity to consider that when they voted. And it's not like being born a US Citizen, solely or otherwise, is much of a barrier to someone identifying with another country (just check out St. Patrick's Day parades).

  • IceTrey||

    The President is actually elected by the Electoral College. Who knows what they might get up to.

  • EscherEnigma||

    Yeah, it's almost like the states have laws about how their electoral votes gets apportioned or something. But who knows what really happens on election day?

  • EscherEnigma||

    Honestly, I'd be fine doing away with most of those restrictions entirely. If an 18 year old diabetic Siamesse cat can get the electoral votes to win, I'd say the people have spoken. And hopefully the cat's running mate was carefully selected.

  • IceTrey||

    Start a movement to amend the Constitution.

  • EscherEnigma||

    Yeah, it's almost like I was responding to a comment that started off with " we can amend the Constitution to say [...]" or something.

  • Rusty Rebar||

    "And if we say that there are people who were citizens at birth but were not natural-born, then they would become
    qualified to be President at age 35 just like a natural-born citizen."

    So what about the case where a US Citizen decides to move to some other country, and then has a child. That child would be a US Citizen. Then lets assume that this family lives in this country for 35 years, then the kid (who is now a 35 year old) wants to run for President. Can they run for President, even though they have never spent a day in their lives in the United States?

  • IceTrey||

    I agree completely with Jay that a "strong check" is needed to ensure foreign influence does not exist in the CIC of the US military. I want a person who is solely, wholly and only loyal to the US. That means born in the country to citizen parents.

  • bassjoe||

    Ah yes, I always forget about the ability of a vagina to impart unwavering lifelong loyalty to a political jurisdiction into a fetus. Silly me.

  • IceTrey||

    Huh? What does that have to do with anything?

  • bassjoe||

    You seem to believe being born to citizen parents means the child is somehow loyal to the country of the parents' citizenship. Which is shallow simplistic thinking.

  • IceTrey||

    No, the person is loyal to the only country of which THEY are a citizen. Again as per Jay's letter to Washington the intention is to put a "strong check" on foreign influnce entering into the postion of the CIC of the military. A check is not 100% certainty but it's better than nothing.

  • The Other Libertarian||

    You seem to be implying that the foreign air a newborn first breaths will forever taint any loyalty he may have to his country. If a couple of U.S citizens are abroad when the pregnant wife gives birth, I fail to see how their first breaths undermine any claim to natural citizenship. Incidentally, this is consistent with my view that if you have foreign parents who happen to give birth to you on U.S. soil doesn't automatically make you a natural citizen.

    It also happens that to give a foreigner citizenship is to "Naturalize" them, which would seem to indicate that a "Natural Born Citizen" is one who possesses citizenship at the moment of birth, by default, as would the child of any American citizen, regardless of the location of their birth.

  • The Other Libertarian||

    Incidentally, I can't fucking stand Cruz....and yes, I'm from Texas.

  • Ship of Theseus||

    Why stop there? I say the person has to be born in a U.S. state (none of this territory business...and should Hawaii even count?), and 3 out of 4 of his or her grandparents must be U.S. citizens (we can give one mulligan).

    That'll prevent anyone unfit for the office from ever becoming president!

  • bassjoe||

    No. Has to be 7 of 8 great grandparents to completely rule out the risk.

  • IceTrey||

    Yes silly arguments are just as relevent as any other. It's not about fitness. Many Presidents have been unfit. The last three for instance.

  • retiredfire||

    The dude involved in the San Bernardino, Christmas party shooting was born, and raised right here in the good old U.S. of A. Don't know if his parents were citizens, at that time, but it is entirely possible they were.
    Think he was solely, wholly and only loyal to the US?
    There have been people, born-on-the-soil, to a U.S. citizen parent, who have been very Anti-American and, if the media fails to point out that propensity, they could be elected president.
    Now, who could I have been thinking of?

  • Jickerson||

    Strange, because a grand majority of our presidents and other politicians that were born on US soil have been authoritarian traitors. They have/had absolutely zero qualms about violating the highest law of the land. I don't see any reason why being born on US soil magically makes someone more trustworthy.

  • jonnysage||

    its 100% settled. Congress defined natural born in 1952. This is the law of the land.

    "U.S. Code › Title 8 › Chapter 12 › Subchapter III › Part I › § 1401
    8 U.S. Code § 1401

    The following shall be nationals and citizens of the United States at birth:

    (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:"

  • IceTrey||

    The words "natural born" do not exist in that law.

  • JWatts||

    Furthermore, a law does not settle a Constitutional issue. The Supreme Court does.

  • ThomasD||

    LOL. Please tell me where the Judiciary is mentioned in Article 1?

    Or are you saying that Cruz is not a citizen? Because if he is, and he's never been subject to any Congressionally defined naturalization process, then by default, his citizenship was natural born.

    Or are you the sort who thinks that a declaration of war must contain the phrase "declaration of war?"

  • IceTrey||

    Making a person a citizen because they have one citizen parent IS a Congressionally defined naturalization process.

  • Jickerson||

    No, they don't. The Supreme Court cannot alter reality; they are not always correct about matters related to the constitution, and in fact have often been wrong. When the courts get it wrong, it's up to The People to correct their mistakes using whatever means are available. The idea that the Supreme Court is always right is, at best, a mere legal fiction.

  • TGGeko||

    How is "citizens of the United States at birth" not synonymous with "natural born citizen"?

  • IceTrey||

    You can be naturalized at birth.

  • spoolin01||

    Citation please. Naturalization is typically used in contradistinction to citizenship defined by birth.

  • IceTrey||

    US v Wong Kim Ark

    "A person born out of the jurisdiction of the United States 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, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon FOREIGN-BORN CHILDREN OF CITIZENS,..." (emphasis mine)

  • buybuydandavis||

    Very nice. Thank you for intruding a relevant fact into the discussion.

  • retiredfire||

    Wong Kim Ark, 169 U.S. at 705. "The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."
    Anything else is dicta - statements made but not part of the ruling.

  • jonnysage||

    Wong Kim Ark was judged before congress wrote the 1952 law. I have yet to see any case that indicates congress cant use their power to define terms in the constitution. So, until that happens, the law is the law. And cruz was born a citizen, and thus natural born.

  • IceTrey||

    Of course Congress can't define terms. Can they define freedom of the press to not include people videoing cops with cell phones?

  • The Other Libertarian||

    Nailed it.

  • jonnysage||

    What other mean ing would it have than born a citizen. Not a test tube baby or clone? Congress had the power to make all laws neccesary. They did so.

  • JFree||

    You are correct that it is 100% settled - and it was settled in 1790 with the Naturalization Act of 1790.

    And the children of citizens of the United States that may be born beyond Sea, or 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:

    That is a clear acceptance of jus sanguinis notion of citizenship. The jus solis (citizenship by location of birth) notion became law with the 14th Amendment. So we now have both forms.

  • jonnysage||

    Hasnt that been superceeded?

  • bassjoe||

    Technically, this isn't the end of the discussion since "natural born" had some meaning in the 1780s only the Lords...er, Justices of the Supreme Court can fathom.

    For the record I 100% believe Cruz is eligible to be President. Whether he should be President is another matter.

  • Jackand Ace||

    Exactly.

  • Thisisalongname||

    It's a joke if you believe that, in order to protect the constitution from foreign influence, Cruz is ineligable (due to being born outside the country despite an American citizen mother) while thousands of children of illegal immigrants who rushed across the border specifically to have a child here (granted citizenship at birth there for natural born citizens) are eligible. You've been suckered into the semantic trap.

  • bassjoe||

    True. It's a joke to think the physical location of your birth and/or the vagina that birthed you has any bearing on your loyalty to anywhere.

  • JWatts||

    I think most people are apt to be sympathetic towards their parents attitudes. So to say it has no "bearing on your loyalty to anywhere" is not applicable to most people. That kind of absolutist thinking is what gets us into these kind of arguments.

  • IceTrey||

    If the defintion is "born in a country to citizen parents" they wouldn't be. If the ruling in Wong was not being misinterpreted those kids wouldn't be citizens at all. In a majority of countries they aren't.

  • EscherEnigma||

    When the 14th amendment was being considered, the spectre that it would give citizenship to the children of non-black immigrants was raised. And the response was "yes, that's the *point*".

  • IceTrey||

    That makes no sense. Illegal immigrants? Transients? Resident immigrants?

  • spoolin01||

    In recent weeks, I've seen it regularly stated in the opposite - that historical context of the 14th indicates children of not-yet-naturalized immigrants were not the target.

  • tom covenant||

    I'm pretty sure you're wrong about that

  • Jackand Ace||

    That's right. What may have caused the founders some consternation 200 years ago isn't necessarily a problem for us today. So the fact that they didn't define natural born may have been a nod to the fact that times will eventually change.

    But still, the definition is up for debate as evidenced by so many legal scholars having differing opinions.

  • Loki||

    I'm just going to really enjoy seeing all the progtards who were foaming at the mouth about RACISTY RACIST BIRTHERS!!!11!!!1!!!!!! a few years ago when there were questions about Obama's eligibility suddenly turn into birthers themselves wrt Cruz' eligibility.

    *pops popcorn, settles in to enjoy the show*

  • JWatts||

    Rabid partisans (such as Proggies) are completely immune to charges or feelings of hypocrisy. They generally justify it by finding some trivial difference between the two cases and claiming that point is why they are being consistent. And the trivial difference doesn't have to be particularly persuasive as long as the group they belong to can hand their rhetorical arguments on it.

  • Jackand Ace||

    Of course he is right, because what he said was the definition of natural BORN was never established, not that Cruz wasn't natural born. Tell it to Dalmia. It's not even close to suggesting Obama was born in Kenya when he in fact had the a birth certificate issued by a U.S. State.

    There also is one important difference between McCain and Cruz. McCain sought the opinion of legal scholars before he ran in case there would be a problem. Cruz did no such thing, because he is Ted Cruz.

  • Thisisalongname||

    But Ted Cruz is a constitutional legal scholar. So just like McCain he sought the opinion of legal scholar, his own.

  • Jackand Ace||

    Kind of like spell checking yourself. Always a mistake.

  • JWatts||

    President Ted Cruz never makes a mistake. So don't fret about it.

  • IceTrey||

    But Obama had a foreign father and since one possible definition is "born in a country to citizen parents" his eligibility is still an open question.

  • GregMax||

    I'm sorry, you all have it wrong! "Natural" born means not in a hospital with a dula. Call out the Militia!

  • ThomasD||

    Natural born, at the time of ratification, at the time of Cruz's birth, and still today means the same thing. It means eligibility for citizenship not subject to the rules of naturalization Naturalization being a process that falls under the plenary powers of the Congress.

    I do not think it a mere coincidence that the authors used both those clearly related terms. Nor was it missed during ratification.

  • IceTrey||

    Making someone a citizen who is born abroad to one citizen parent DOES fall under the plenary powers of the Congress.

  • ThomasD||

    Yes, that is true. Never said, nor meant to imply otherwise. But it is an immaterial point - because Congress has never chosen to pass such a law. Said law being largely unnecessary - since absent any other action by Congress, such a person born abroad to a US parent is automatically eligible for citizenship.

    Natural born citizenship is default citizenship.

  • IceTrey||

    Yes they did.

    U.S. Code › Title 8 › Chapter 12 › Subchapter III › Part I › § 1401
    8 U.S. Code § 1401

    The following shall be nationals and citizens of the United States at birth:

    (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:"

  • spoolin01||

    It also meant lots of statutorily- and sovereign decree- defined cases of those born on foreign soil who were nevertheless "natural born" and therefore not in need of naturalization.

  • spoolin01||

    From what I see there was not consistent usage showing that natural born had a narrow definition that excluded jus sanguinis, or that deriving from plenary powers was a necessary distinction between naturalized and natural born. Definitions of natural born were made by statute, including US statute (1790).

    Absent a showing that natural born had the meaning of jus soli only, the term itself in the Constitution doesn't seem to settle the dilemma.

  • Eternal Blue Sky||

    And I think Trump just won.

    Cruz was the last person with a serious challenge to Trump in the polls, and he's been going down ever since Trump merely suggested that there MIGHT be difficulties with Cruz's eligibility.

    Now everyone's talking about Cruz's eligibility being a problem, liberals, conservatives, and libertarians alike. And Democrats are threatening lawsuits, making it likely that it WILL be a problem. And Cruz's numbers are going down as voters decide he's not worth the risk.

    For all his stupid ideas, Trump's damn smart when it comes to manipulating people.

  • buybuydandavis||

    Also, as I think Mark Steyn pointed out, regardless of the law, many people don't think ferrigners *should* be allowed to be president, and many people don't know that Cruz is a ferrigner, so that the debate on the issue *by itself* gets out information to a bunch of people that will disqualify Cruz in their minds.

    "For all his stupid ideas, Trump's damn smart when it comes to manipulating people."

    Yeah, he is.

    I think Cruz is pretty good too, though. Everybody thinks that Trump won that whole "New York Values" kerfluffle, but in fact I think it will play to Cruz's advantage in a lot of places.

    Similarly, I think his stand against ethanol subsidies could play to his advantage too. He's staked out the small government position there. And while he takes a hit in Iowa for it, taking that hit actually makes him look like a principled small government guy (at least on this position). Meanwhile, it's easy to paint Trump with the Crony Capitalist brush. Definitely, simply keeping Crony Capitalism alive as an issue is bad for Trump.

    Taking the long view on delegates, both of these guys look like they're making smart moves.

  • ImanAzol||

    It would be hilarious watching the DNC turn into birthers to stop a Cruz presidency.

    It would just prove they're hypocritical racists. Which we know, of course.

  • Ron||

    So if someone is born by Cesarian does that mean they are not naturally born? This is the argument I would take and say that no one has not yet been un-naturally born, including those born through a Cesarian, and thus the term could be left out of any laws after the initial law to determine citizenship, leaving out the obvious of course is often one of the problems with the Constitution. Thus Cruz is a citizen. Of course that type of logic does not always play in court.

  • Mickey Rat||

    I hope you are joking.

  • JFree||

    That definition only applies to MacBeth

  • EscherEnigma||

    Gee, it's almost like "originalist" means "I decide on the answer then justify it based on 200+ year-old records that can be reasonably interpreted in a variety of ways to suit my purposes."

  • lafe.long||

    see also: religion

  • ImanAzol||

    Yes, but where were you born?

  • ranrod||

    1. Neither Obama, Marco Rubio, or Ted Cruz are natural born citizens. At the times they were born, their Fathers were not citizens. Location of birth is irrelevant. Those who insist that a person must be born within the US point to Section 212 of Vattel. But one must read all that Vattel wrote on the subject and which is contained in Sections 213-217.
    5. Our Country would be so much better off if people would stop spouting off about this subject until after they become well-informed. And they can’t become well-informed until they have studied this carefully using original source documents and read all the original source documents I cite in my first paper.
    And you must detach the result you want from your thinking when you are studying. TRUTH sheds its own Light – and you will NEVER get that Light until you love TRUTH above all things including the outcome you want. I am well aware of the disgraceful cases where peoples’ views on this issue are determined by whom THEY want for President.

    https://publiushuldah.wordpress.com/2016/01/17/ natural-born-citizen-status- is-inherited-its-not-bestowed- by-the-constitution-or-acts-of-congress/

  • buybuydandavis||

    " Our Country would be so much better off if people would stop spouting off about this subject until after they become well-informed. "

    That was pretty funny.

    No, wait, you're serious? That's even funnier.

  • ||

    Well, at least the entire post wasn't in caps.

  • larryseltzer||

    The plain language of the 14th Amendment isn't clear enough for you?

    "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

    How does Marco Rubio not fit this definition? How can you say that location is irrelevant? It's explicitly relevant

  • ImanAzol||

    That says nothing about "Natural born," only about "Citizenship." Immigrants are naturalized.

  • John C. Randolph||

    . Neither Obama, Marco Rubio, or Ted Cruz are natural born citizens.

    Yes they are. You're wrong, and fuck you for trying to promulgate this line of bullshit.

    -jcr

  • retiredfire||

    I've checked.
    There is no one named "Vattel" that signed the Constitution.
    Unless there are some transcripts of the discussions of the language used in Article 2, what may have been written prior to the drafting is meaningless.
    Absent some knowledge of what the Framers intended by including the term "natural born", saying it is supported by this, or that, historical reference is sophistry.
    Even the revered Federalist Papers were written after the text of the Constitution was decided, and were only used as a way to convince certain, reluctant states, namely New York, to accept its ratification. On top of that, they were only the thoughts of a few of those involved in its creation, not a consensus of the authors.

  • ammytho147||

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  • ImanAzol||

    But where was syPhyllis born?

  • buybuydandavis||

    "Trump Is Right About Cruz's Presidential Eligibility"

    That's really the magic trick of Trump. He says things that evoke immediate hysterical pants shitting fits, calling him a liar and crazy man, and people keep talking about it, until it's "yeah, he's probably right".

    Trump: Deport em!
    Smartys: You can't do that. You're a nazi. You're da Debil! That's not who we are!

    Trump: Ike deported over a million Mexicans in a year.
    (And Obama is almost up to half a million a year himself.)

    This is who we are.

  • George Washington||

    20 bucks says nick actually wrote this.

  • larryseltzer||

    I'm no fan of Cruz, but I have to wonder why there's any controversy here. It's worth considering the Naturalization Act of 1790 (http://goo.gl/KgI3tL). It’s worth emphasizing that this act was authored by many of the people that wrote the Constitution itself. It declares that “… the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens”

    It goes on to add restrictions that aren’t in US law now, but it clearly shows that the founders meant to include as natural born citizens, and therefore eligible for the Presidency, persons born outside of the United States, and outside even of territories of the United States. I'm not aware of any other law in which Congress defines the term.

  • spoolin01||

    Even that law doesn't seem to settle it, as it was superceded a number of times in short order, where "natural born" was removed. I think at best the record shows there were differences of opinion about how to constrain presidential eligiblity.

    What is does NOT show is that there was some clearly agreed definition or that it was immutable.

  • larryseltzer||

    Right, they removed the term in 1795, but they never redefined it anywhere else. The point is that if they thought of the term as meaning someone born in the actual US they wouldn't have written the Naturalization Act of 1790 the way they did.

    What is does NOT show is that there was some clearly agreed definition or that it was immutable.

    Perhaps that's true. but the Naturalization Act of 1790 at the very least shows that it's reasonable to call Cruz a natural born citizen. Beyond that, as you say, it's controversial. There's no way to prove he isn't and he has the better argument.

  • larryseltzer||

    Incidentally, to me the term 'natural born citizen' means someone who, by law, is a citizen from birth. For this reason John McCain and Barry Goldwater, neither of whom was born in a state, were natural born citizens.

  • IceTrey||

    How can something requiring a law be natural?

  • IceTrey||

    It says "shall be considered as". That's not a definition.

  • halmonkey||

    "natural born citizen" The Constitution doesn’t define the term, but the Framers’ understanding, combined with statutes enacted by the First Congress, indicate that the phrase means both birth abroad to American parents—in a manner regulated by federal law—and birth within the nation’s territory regardless of parental citizenship. The Supreme Court has confirmed that definition on multiple occasions in various contexts.

    Anyone who is a citizen at birth—as opposed to someone who becomes a citizen later (“naturalizes”) or who isn’t a citizen at all—can be president. The Nationality Act of 1940 outlines which children become “nationals and citizens of the US at birth.” In addition to those who are born in the US or born outside the country to parents who were both citizens—or, interestingly, found in the US without parents and no proof of birth elsewhere—citizenship goes to babies born to one American parent who has spent a certain number of years here.

    That single-parent requirement has been amended several times, but under the law in effect between 1952 and 1986—Cruz was born in 1970—someone must have a citizen parent who resided in the US for at least 10 years, including five after the age of 14, in order to be considered a natural-born citizen. Cruz’s mother, Eleanor Darragh, was born in Delaware, lived most of her life in the US, and gave birth to little Rafael Edward Cruz in her 30s.

    Written by Ilya Shapiro [Cato Institute]

  • DarrenM||

    The Supreme Court has never really ruled what a "Natural Born Citizen" is. Given that, Congress (with no Presidential veto) can define what it is, which would stand until the SC says otherwise. This has been the case in many areas.

  • John C. Randolph||

    NO, Jacob. Trump is absolutely wrong on this, and fuck YOU for trying to disparage MY citizenship, asshole.

    -jcr

  • IceTrey||

  • spoolin01||

    It's a cock-up, and damned if I can solve it today.

    Good but long article:

    http://www.theatlantic.com/pol.....mo/424206/

    If there was such consensus and agreed significance to this issue, why did the framers choose such poorly supported wording? Did they sometimes accept ambiguity with the expectation that it would be sorted out statutorily, or because it kept the process moving forward despite minor concerns?

  • Bill Dalasio||

    This is getting absurd. Yes, Ted Cruz is a natural born citizen. He never had to be naturalized. Why? Because he was already considered a U.S. citizen. As others have pointed out, the first Congress, many of the same people who wrote and authorized the Constitution defined it to include the parents of Americans living abroad. Want to ignore their views? Are you ready to do so on the definition of militia?

    If you try to use the birther's standard of citizenship - geography - you get absolutely batshit crazy results. The child of two illegals born in the U.S. is a "natural born citizen", but the children of our troops stationed abroad aren't. Want to try pushing that logic, guys? Yeah, see how far that gets you.

    The only people pushing this are hacks.

    I despised the birthers when they were going after Barack Obama, who I detest. And now I have even more contempt for them when they're trying to drum up an attack on Ted Cruz, who I kind of like.

  • IceTrey||

    There's no definition in the Act of 1790. It merely says those born abroad "shall be considered as".

    You don't get crazy results if the definition is "born in a country to citizen parents".

  • John C. Randolph||

    The only people pushing this are hacks.

    They're not all hacks. Some of them are liars and nut jobs.

    -jcr

  • hp||

    Ike Broflovski Jr.

  • patlin||

    This will take a few posts ... I am going to have to respectfully disagree that birth on the soil is the measure by which one is or is not a 'natural born' because there are instances where a child such as McCain would be a 'natural born' even though their birth was not on US soil. For that we go to international law of the time, law that is still valid today and that is, while parents are serving their country abroad, it cannot be assumed that they have cast off their allegiance to their country. And so any child born of them while they are serving abroad, it is if that child is born within the country.

    The Supreme Court has ruled on this issue, twice, shortly after the 14th Amendment and the Expatriation Act were passed. Minor v. Happersett, 88 U.S. 162 (1875) and Elk v. Wilkins, 112 U.S. 94 (1884) both agreed that the Constitution does define who a natural born citizen is and is found in the language itself. The first rule of law is that one part of the law cannot make void another part of the law. As it is for one section, it also applies to the other section of the same subject matter and for citizenship, the difference between natural born and naturalized is the phrase, 'subject to the jurisdiction' which is the actual statute that is the 14th Amendment, the wording states, 'not subject to any foreign power'.

  • patlin||

    There was a great controversy as to dual allegiances because of those clinging to feudal birthright laws that had long been cast off by all state legislatures as well as the federal government. It became so bad in 1859 that the Buchanan administration published nationwide, the difference between naturalization and natural born.

    (9 Ops. ATT’Y GEN. 3.56 (1859)) “The question then arises, what rights do our laws confer upon a foreigner by granting him citizenship? I answer, all the rights, privileges and immunities which belong to a native-born citizen, in their full extent with the single qualification that under the constitution, “no person except a natural born citizen is eligible to the office of President…Here none but a native can be President…A native and a naturalized American may therefore go forth with equal security over every sea and through every land under Heaven…They are both of them American citizens, and their exclusive allegiance is due to the Government of the United States. One of them never did owe fealty elsewhere, and the other, at the time of his naturalization…threw off, renounced and abjured forever all allegiance to every foreign prince, potentate, State and sovereignty whatever, and especially to that sovereign whose subject he had previously been.”

  • patlin||

    The US soil factor also fails the test of the earliest naturalization laws that stated that those laws pertained to the children of naturalized parents, whether born in or out of the US.

    28th Congress, 2nd Session
    page 129 MR. SAUNDERS’S REPORT ON NATURALIZATION; First, the act of 1802, which repeals all former acts.

    It restores the provision of the declaration of intention to three years before application, and a residence of 5 years before admission, and requires proof of good character, renunciation of former allegiance, as well as of all titles or orders of nobility, and an oath to support the constitution; it requires the “registry” of aliens “in order” to become citizens, and the production of the certificate of registration when applying for admission. It further provides for the children of aliens, whether born within or out of the United States: SEC 4 And be it further enacted That the children…who previous to the passing of any law on that subject by the government of the United States may have become citizens of any one of the said states under the laws thereof being under the age of twenty one years at the time of their parents being so naturalized or admitted to the rights of citizenship shall if dwelling in the United States be considered as citizens of the United State (April 14 1802 US Statutes at Large Vol 2 pg 155)

  • patlin||

    And this brings us back to the Elk v Wilkins case wherein the Supreme Court ruled, and all, including those of dissent, the entire court agreed on this one point of the 14th Amendment: "“[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”…Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Brad­ley in dissent from the principal holding of the case, likewise acknowledged that the clause was designed to remove any doubts about the constitu­tionality of the 1866 Civil Rights Act, which pro­vided that all persons born in the United States were as a result citizens both of the United States and of the state in which they resided, provided they were not at the time subjects of any foreign power."

    "AND children of citizens or subjects of foreign states". US citizenship of a child in conferred through the parents, 'parens patriae' as well as 'jus sanguinis', terms of law the founding fathers were very familiar with. Harvard Law review has not been silent on this fact, addressing it many times during the 20th century, here are the ones that pertain to the laws when Cruz was born,

  • patlin||

    (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).)

  • patlin||

    And here is the Michigan Law Review that Harvard quotes from, (Michigan Law Review (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).

  • patlin||

    Another good Supreme Court case on this subject that the dicta of the Opinion of the Court does speak directly about 'natural born' and presidential qualifications, Perkins v. Elg, 307 U.S. 325 (1939)

    And so the misnomer that the US Supreme Court has never addressed the issue is simply not true. The 1898 Wong Kim Ark case that a lot of lawyers who like to quote British law use to support their 'jus soli' arguments ignore the fact that WKA was not declared a natural born, he was declared a citizen because before WKA had left for China, he went and renounced his Chinese citizenship, gained a US passport and it was upon his return at the time he told the US govt the would return that some rogue employee in the govt refused to let a legally naturalized US citizen back into his country. The fact that WKA was born on US soil made him a native and thus the process of his naturalization was expedited since he had never lived anywhere but the US. James Kent covers in depth the fact that all natives are born on the land, however, not all natives are citizens as citizenship is a political issue, not just a residency issue.

  • patlin||

    And so it is NOT about whether Cruz was born on soil, it is about the allegiance of his parents, BOTH parents, were those parents serving the US Government in a official capacity at the time the child was born abroad because ONLY when both parents are US citizens in official service to their country abroad is a child without a doubt a natural born citizen such as John McCain, who I don't care for, however, it matters not what I feel, it is what the law states. And so this should put to rest those who are serving their nation abroad and should a child be born, as long as both the parents are US citizens, then there is no question that their child is a 'natural born'.

    And also, the question must be raised, why is not Marco Rubio being put under the same scrutiny? He may be a 'native' of the soil, however, he is not a 'natural born', he is a naturalized citizen according to US Law as only US citizens can give birth to a US citizen and neither of Marco Rubio's parents were citizens, they hadn't even applied for US citizenship when Marco was born and they didn't apply and become US citizens until Marco was 4 yrs old.

  • patlin||

    In conclusion, 'natural born' is simply EXCLUSIVE allegiance to the US at birth, the same as it is for Article 1, Sec 8 naturalized citizens upon their taking the oath of citizenship that includes the renouncing of their foreign citizenship.

  • patlin||

    Sorry, forgot this: (73 Harv. L. Rev. 1512 1959-1960) …later there was considerable controversy whether aliens who became American citizens could effectively cut their original ties. This was a different issue from that discussed in Perez and Trop. The earlier controversy resulted in the celebrated opinion presented by Attorney General Black to President Buchanan, and the Expatriation Act of 1868,” both upholding the individual’s right of expatriation. The vigor of the American point of view had its effect upon Great Britain, where in 1869 a Royal Commission recommended the end of a system of perpetual allegiance. (9 Ops. ATT’Y GEN. 3.56 (1859). Act of July, 27, I868, ch. 249, I5 Stat. 223.) .... And the Expatriation Act states: Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle, this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed; Therefore ...

  • patlin||

    Therefore,

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.

    Protection to naturalized citizens in foreign states.

    Sec. 2. And be it further enacted, That all naturalized citizens of the United States, while in foreign states, shall be entitled to, and shall receive from this government, the same protection of persons and property that is accorded to native-born citizens in like situations and circumstances.

  • tom covenant||

    Well said, thanks

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