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Katyal, Clement, and McManamon, Duggin and Collins view the phrase as "opaque" and dangerously "ambiguous" (as well as outdated, unfair, and antidemocratic), arguing that it should be excised by amendment.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.
Now that you've seen the article, you know I've been thinking of this for a long while. The first five years of a child's life are dominated by its parents, particularly the mother. After that it's school. So if it were up to me as to what makes for a "natural citizen" (note the omission) I would set it to the place where the child spent the temporal majority residence of its rearing and the citizenship of the parents (both). By that criterion Ted Cruz would not be eligible. He'd make a better Supreme Court justice than a President anyway and an absolutely killer Attorney General. Were times not so desperate, I'd have wished he wouldn't run.
As you know, I am so dead set against Donald Trump I hate saying that. He will wreck conservatism both by the numbers of Democrats he will legalize and by association with conservatives for the consequences.
At the same time, some incredibly dangerous wackos failed to assmilite here, such as ...
... the Frankfurt School
... Emma Goldman [who triggered the McKinley assassination]
... Berkman [who tried to kill Carnegie’s business partner].
[Also note the actual battle Goldman and Berkman were involved in between a union and a steel company.]
That's a different problem. That's about whom we allow to immigrate into the country. You will recall that when the Frankfurt School arrived, it was to the open arms of the communists in the Roosevelt Administration.
American communism had a long legacy prior to that. It was the 19th Century practice of the American elite to send their children to Europe for university study that created Roosevelt's red diaper babies.
The Supremes Wrote the final decision.
You really should use the links I provided !
Not until you have read the article I wrote and change your crappy tone. "Stupid" people don't cite SCOTUS dissents. Stupid people put too much trust in Horace Gray, author of the majority opinion, a buddy of Brandeis, Holmes, and other noted court activists and a big fan of paper money.
We might end up with a new Teddy Roosevelt [Trump], but that does not derail the Liberty Amendments [Levin].
It would be a powerful one-two combination to take back America.
I agree with your concern over treaties. Trump would put America first in each and every treaty. [One reason I support him.]
And the treaties we don’t like, we can get rid of via constitutional amendments. That, BTW, would be retroactive if I have any say. Roll those treaties back!
Cruz would be top notch on the Bully Pulpit. But what we really need in the White House is an executive who can replace desk zombies with achievers, who can strong-arm congress into cutting waste and approving judges opposed to Roe [an excellent litmus test to weed out activist-judges].
Yes, and was common of that period, the wife assumed the husband’s citizenship.
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