Posted on 01/21/2016 5:31:08 AM PST by VitacoreVision
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Katyal, Clement, and McManamon, Duggin and Collins view the phrase as "opaque" and dangerously "ambiguous" (as well as outdated, unfair, and antidemocratic), arguing that it should be excised by amendment.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.
Cruz makes more sense than anyone. Next I would have to go with Rand but only because I voted for his dad so many times. He was my congressman in Texas.
I am also in Texas. Part of the reason I am so disgusted with Cruz. Nuthin like being a stepping stone. And misled.
You must have been down around Lake Jackson/ Brazoria County? One of my dogs was rescued out of BCSOAC.
So... you agree with me, but don’t like me. I don’t care.
Agreed, absolutely. Dicta only. And mine, merely personal opinion.
Re. your comment: “A woman’s rights are not violated if her son is not ‘natural born’. If you think that argument is gimmicky and unfair, I agree. But we must not expect the other side to be fair.”
I do not consider such an argument to be either gimmicky or unfair. This goes to the heart of the meaning of the phrase ‘natural born citizen’. My own view is that there never has been unanimity on the full meaning of this term. Some thought it included only Class A and no others. Some thought it included both Class A and Class B, but not C. Others thought it included Class A and Class C, but not Class B.
Where:
Class A represents children born in the territory of the US; both or one citizen parent
Class B represents children born in the territory of the US; neither parent a citizen
Class C represents children born outside the territory of the US; both or one citizen parent
I could add more classes and/or subclasses - it doesn’t stop here.
I think for the understanding of all and in the interest of clarity this phrase could be altered by Amendment to read “Citizen by birth”.
Women never had the right to pass on natural born status prior to the 14th Amendment [father’s citizenship always essential], and no new rights were added by it. Why did you fail to notice the point?
Quoting Greetings Puny Humans:
[quote]
... the 14th amendment did not add any privileges, it merely provided additional guarantee of protection for such rights they already had. From the court Syllabus:
“The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had.”
[unquote]
I realise that even an originalist is not a strict constructionist. It would be fine to point out the difference. Maybe that would clear it up.
— FRegards ....
Where are the ‘class A, B, and C’ codified?
[I tried to find it in Google, but it was hard to narrow the search.]
‘200 years ago, the people knew what NBC was. They certainly knew that is wasn’t anybody born abroad. It was a no brainer.’
That one definition alone brings doubt. And doubt is something an ideal candidate would not bring to the table.
The only reason we even consider Cruz eligible is because he is so amazing in other respects.
The law didn't recognize a woman's "right" to pass citizenship to one foreign born, until 1934. Her ability to pass her citizenship to a child born abroad depended on her being married to a man who had been a resident (alien) of the US for a certain number of years.
Bellei does a good job of describing the changes in naturalization laws from 1790 until the time Bellei was born. As you no doubt know, the naturalization statutes are more liberal now.
The essence of your point is absolutely true. Citizenship at the time of the founding was a function of place of birth and the father's citizenship. The wife/mother's citizenship was not a factor for birth in wedlock.
My remarks above are just on the subject of citizenship. NBC is a different inquiry, and the 14th amendment made no change relating to NBC, in my view at any rate.
In the post itself.
BTW ... I found another Cruz defender who is willing to debate original intent.
John Valentine and Yosemitest — you guys should coordinate, maybe ping each other.
I’m just trying to clear this up, and Cruz deserves a strong defense on this forum.
I’m not always clear on the difference between originalism and ‘breathing document’. Is it originalist to remove gender considerations regarding natural born status?
‘Both ways of looking at it from your post don’t seem relevant. The US law on dual-citizenship does not mention gender ...’
The following is no intent to impune Cruz’ patriotism. I would support an amendment to make him elibible. But what was original intent?
So what was the founding fathers’ intent regarding ‘natural born citizen’? Was not the driving intention to prevent English nobles [or royalty] from siring children [possibly bastards] who could become our defacto king?
Quoting you here because Cruz supporters do nothing but belittle Tribe. He might be an enemy of the Constitution, but they are apparently intimidated by him:
“Tribe discussed Cruz’s own approach to constitutional issues, noting that under ‘the kind of judge Cruz says he admires and would appoint to the supreme court - an ‘originalist’ who claims to be bound by the historical meaning of the constitution’s terms at the time of their adoption - Cruz wouldn’t be eligible because the legal principles that prevailed in the 1780s and 90s required that someone be born on US soil to be a ‘natural born’ citizen.’
He added: ‘Even having two US parents wouldn’t suffice for a genuine originalist. And having just an American mother, as Cruz did, would clearly have been insufficient at a time that made patrilineal descent decisive.
‘On the other hand, to the kind of judge that I admire and Cruz abhors - a ‘living constitutionalist’ who believes that the constitution’s meaning evolves with the needs of the time - Cruz would ironically be eligible because it no longer makes sense to be bound by so narrow and strict a definition.’
Tribe said: ‘There is no single, settled answer. And our supreme court has never addressed the issue.’
Yes. And sadly, the candidate whose upbringing epitomized the fear the founders punked the system with a modified PDF.
And some who didn’t care enough in that case, make it an issue with Cruz.
Dag-nabbit, I want this matter resolved!
Quoting you here because John Valentine mentioned that same trial:
[quote]
Minor v. Happersett states there is no doubt that an individual born under US jurisdiction to citizen parents is a natural born citizen. But, it also says that some authorities go further and extend that status to those born under other circumstances, about which there are doubts. It goes further to state that such doubts can be resolved. Being born out of the jurisdiction of the US leaves open the possibility of birthright citizenship from another nation that determines citizenship in that manner. Being born to a noncitizen parent leaves open the possibility of citizenship by descent from another nation that determines citizenship in that manner. Every individual circumstance is different, with different legal ramifications, for those who were not born to citizen parents within US jurisdiction. It’s clear to me at least that the concern was legal jurisdiction over a President, and only US jurisdiction was acceptable.
[— RegulatorCountry]
‘Both parents must be U.S. Citizens to confer natural born Citizenship status to their child.’ — Godebert
That would certainly fulfil the purpose of ‘natural born status’.
I’m trying to funnel all the smart ones here to finally get this cleared up!
‘Natural born citizens need no statute. The day they are born they are citizens NATURALLY because they were born of citizen parents in the country.’ — freedomjusticeruleoflaw
Funneling the smart ones here. FRegards ....
‘Read the first 9 words of it a few times: All persons born or naturalized in the United States ...’ — RC one
Yes. The people born abroad are naturalized. Why would we want a foreign born President?
After wading through it today, I don’t see the 14th amendment as adding more rights beyond original intent other than what was enumerated, such as freedom from slavery and increasing federal authority to defend peoples’ freedoms.
So ...
This remains my gold standard for original intent regarding natural born status [by greetings puny humans]
[quote]
http://www.freerepublic.com/focus/news/3383942/posts?page=122#122
Cruz is not eligible ... there are only two definitions for ‘natural born citizen’ available during the time the founders wrote.
The first from the law of nations, which requires the child to be born to 2 citizen parents and on American land. The second under British Common Law, as seen in Blackstone’s commentaries, which, though it removes the requirement of being born in the US, transmits the ‘natural born’ status through the father, not the mother.
Hence why a couple of the liberal scholars keep saying ‘under an Originalist view, Cruz would not be eligible,’ because that’s exactly true. A renowned originalist constitutional scholar (frequently cited by the supreme court) even said the same thing: ‘Cruz is not eligible.’
— Greetings_Puny_Humans
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