Skip to comments.Ted Cruz, Originalism, and the “Natural Born Citizen” Requirement
Posted on 05/08/2013 8:03:24 AM PDT by SeekAndFind
In one of my first essays for NRO back in 2005 (Are You an Originalist?), I selected the Constitutions natural born Citizen criterion for eligibility to be presidenta provision that then seemed at the time to be beyond the distorting effects of political biasto illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born in 1936 in the Panama Canal Zone to parents who were American citizens, was a natural born Citizen ratified my point, as virtually all commentators purported to undertake an originalist inquiry.
I hadnt seen any reason to comment on the left-wing birther attacks on Senator Ted Cruzs eligibility to be president. Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.
As this Congressional Research Service report sums it up (p. 25; see also pp. 16-21), the overwhelming evidence of historical intent, general understandings [in 18th-century America], and common law principles underlying American jurisprudence thus indicate[s] that the most reasonable interpretation of natural born citizens would include those who are considered U.S. citizens at birth or by birth, under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent. In other words, there is strong originalist material to support the semantic signal that natural born Citizen identifies someone who is a citizen by virtue of the circumstances of his birthas distinguished from someone who is naturalized later in life as a citizen. (In McCains case, the dispute turned on whether he was indeed an American citizen by virtue of his birthor was instead naturalized a citizen under a law enacted when he was eleven months old. For more, see law professor Gabriel Chins lengthy article making the case against McCain.)
To my surprise, the New Republics Noam Scheiber tries to argue that Cruzs embrace of constitutional originalism somehow means that Cruz cant determine that he is a natural born Citizen. But the only evidence that Scheiber offers for this position is the assertion (which Scheiber mischaracterizes as a concession) by a non-originalist law professor in an MSNBC interview that the proposition that a person is a natural born Citizen if he is a citizen by virtue of his birth isnt really clear cut if you limit yourself to the actual wording of the Constitution (thats Scheibers paraphrase) but instead depends on how our understandings have evolved over time. Scheiber both overlooks the powerful originalist evidence in support of Cruzs status as a natural born Citizen and misunderstands how originalist methodology operates. (In public-meaning originalism, you dont limit yourself to the actual wording of the Constitution, and you dont find yourself lost simply because the Constitution never defines what natural born means. You instead look to the public meaning of the term at the time it was adopted.)
My point here isnt to contend that the originalist evidence points entirely in one direction. As law professor Michael Ramsey observes in a post that Ive run across while finalizing this post (a post that also takes issue with Scheiber), there are originalist scholars who dont find the argument entirely conclusive. But Scheibers piece is a cheap whack at Cruz as well as a cheap whack at originalism.
ping for later reading........
The issue of Ted Cruz’s qualification for the Presidency by virtue of his birth will be a heated debate in this site *IF* he ever runs.
The fact that Obama was able to get away with it won’t end the debate at all.
I heard Mark Levin say these words, that he hopes Ted Cruz will run in 2016. THERE, HE SAID IT.
Which proves, among other things, that Mark believes Ted is a natural born citizen.
This therefore requires us to believe that Congress can redefine the meaning of words in the US Constitution, which is absurd.
Which proves, among other things, that Mark believes Ted is a natural born citizen.
And that proves that Mark has a flawed understanding. If Congress had not passed that act, Cruz would have no claim on American citizenship.
Natural citizenship based on an act of congress? That is a contradiction. Suppose congress passed no such act? Would he still be a "natural citizen"?
If Cruz is a US NBC, is he also a Canadian NBC?
Levin also believed until recently that if you were born on American soil you were automatically a citizen. He doesn’t believe that anymore. The obvious conclusion is that his understanding of basic law with regards to this issue is evolving. Now, knowing this, why would you want to put forth a candidate who wasn’t even born in America? Why would anyone do that? Cruz is a ridiculous choice because he is so obviously not a natural-born citizen.
The Current FReepathon Pays For The Current Quarters Expenses?
Natural-born means: so naturally a citizen that no statute is needed to establish the relationship between an individual and his or her country. In Cruz’s case it is obvious that statutes would be required to “grant” citizenship. He, like Obama, is without question a citizen. But, he, like Obama, is also clearly not natural-born.
Wouldn’t it be just like the left to push hard for a strict interpretation of eligibility when it’s our candidate and totally ignore Obama’s ineligibility?
And then call us racists for pointing it out.
Interestingly, this article isn’t really about Cruz’s eligibility, it’s about liberals being intellectually dishonest. Big shock there.
Notice that the article stresses that, “under the laws that were in place (when Cruz was born)...” If you are “natural-born” no laws need to be “in place.” You are just naturally a citizen by the circumstances of your birth. Your mom is a citizen, your dad is a citizen, and you were born in their country. Think about it this way... If there is the possibility of statutes that could disable your citizenship altogether, how can you be construed as “natural-born?”
That is only true if you assume that the term “natural-born” already have a common-law meaning at the time the constitution was written, AND that the term excluded people born to parents from the country but who were out of the country at the time of birth.
The point of the argument made here is that if you look at the term as used in those days, it would have already granted citizenship.
That congress passed a law to make it clear what this meant is not germane, unless you believe that without any law, there would be a clear answer to the question.
Note that McCain was judged to be a natural-born citizen even though he was born before the latest law was passed.
It would be nice in some cases if the founding fathers had included a glossary of terms, and had spent a little more time defining what they were talking about. Of course, they couldn’t have anticipated our modern ability to twist every word that exists. But I believe if they spent a year here today, and went back, they could have written a constitution that had much better protection against the tyranny that has befallen us.
I’m convinced the commerce clause would be a section all on its own, because that is the most certain area where what we do today isn’t anything like what they thought.
Absurd if you don't know history. The first Congress and Pres. Washington made children born over seas to citizen parents "natural born citizens" and used that term in the law. That's really all we need to know: Congress can define the term by law just as it defines who is and who is not a citizen by birth. As far as inherited citizenship, they're one-and-the-same.
Can you really believe it was different in their day?
The SCOTUS of the USA is closed to the issue, leaving me, the author, and about 40 Million Americans at loggerheads. Several justices (Thomas, Scalia, Alito,) have suggested in not-so-veiled hints, that The SCOTUS people are ducking this issue. Since nothing they can say or do at this point can possibly affect The Mombasa Mofo who is the sitting President, all we can do is earnestly beseech the black-robed bum-kissers is to get on with it and do their job.
All they can do now is say, "Yes, or No. I.E., Kid Kenya was...was not... eligible to run." In fact, they needn't go even that far, IMNVHO, all they need to do is straighten out what THEY think is a "natural born Citizen," (Article II capitalization). They also ought to rule on this entirely stupid and unconstitutional notion that a child born here to non-citizen parents is automatically a citizen, even if the parents are here illegally.
I am reasonably sure that the sequester has not caused SCOTUS paychecks to bounce, but this bullshiite is paralyzing the rest of the country and undermining the prestige of the Presidency, whether Reggie's BF wants to admit or not.
Sorry, I can’t access the original piece.
Yes, “natural born” means a citizens by circumstances at the time of birth.
The problem is, what are those circumstances that qualify a person to be a citizen at the time of birth. There actually is a bit of a history to this. The (original) Constitution doesn’t spell these out the circumstances.
On the matter of lineage, some people could have argued that natural born requires that the father be a citizen at the time of birth, which is known as patrilineal lineage. This has been the predominant form of lineage, and remains in practice in many countries.
At a later time, the 14th Amendment established birthright citizenship; i.e., any person born in the U.S. is a citizen.
The U.S. Congress established statutory law for natural born citizen (filling in a void in the Constitution, as it were). By reason of such law, natural born include:
Persons born in certain places, such as Puerto Rico, about which there might be some doubt at to whether those places are part of the U.S.
Persons born not in the U.S. of American mothers and of American fathers only. (Those born of American mothers have no problem ever claiming their citizenship. Those born of American fathers only have no problem if their citizenship is claimed when they are very young. If they are older when the claim is made, they have the burden of proof, which can be easily met nowadays with DNA samples).
The Congress also limited the passing on of citizenship to one generation. (Therefore, the community of people in Brazil that are descendants of CSA veterans who went there rather than live under the domination of Yankees are not U.S. citizens.)
Do these Congressional acts mean that it is wrong for somebody to argue what “natural born” should be? Not at all. Congress could amend the law (regarding persons born overseas). The Congress could even propose a Constitutional Amendment to limit or eliminate “birth right” citizenship.
The U.S. Supreme Court might be persuaded that “natural born” citizenship requires both parents be citizens at the time of birth and be born in one of the states of the U.S. Perhaps this was the original understanding. Or, perhaps this is justified because the Constitution is a “living document” and it means whatever the Supreme Court says it means.