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Talking Points Memo ^ | April 19, 2016 | Katherine Krueger

[WhiskeyX]

“My point is not that we should all vote for Cruz in November of this year. It is that a reasonable person could read Cruz as a citizen at birth under common law, and common law governs the meaning of undefined terms in the Constitution.”

That is a false statement. Under U.S. common law, a person must be born within the sovereign jurisdiction of the United States of America with two U.S. citizen parents to qualify as a natural born citizen of the United States of America.

“Since the common law determination of Wong Kim Ark’s citizenship overturned by SCOTUS was that the baby born to a Chinese citizen mother in the United States was Chinese, that would imply a reasonable common law interpretation that baby Ted Cruz born to a US citizen mother in Canada was American.”

Wrong, because you are using a false premise to invent a strawman argument. Due to the fact that Wong Kim Ark’s parents being foreign citizens, Wong Kim Ark could only acquire U.S. citizenship by naturalization and as naturalized U.S. citizenship. Such naturalized citizenship is conferred by the authority of a legislative act that is Positive Law that is the exact polar opposite of common law and the Law of Nature defining natural born citizenship. This contradistinction between the legislative act of the 14th Amendment to the Constitution versus the Law of Nations and Law of nature is precisely why they made the statement, “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized....”

“Canada also granted baby Ted citizenship at birth, but the US does not recognize foreign law as taking precedence over US law or over common law (see, for example, US citizens visiting Iran or Cuba and claimed as Iranian/Cuban citizens when they are foolish enough to visit the country their parents came from).”

There are several things wrong with that statement. First, the Canadian law in effect at the time of the birth of Ted Cruz in Calgary, Alberta, Canada required one or both of his parents to be Canadian citizens or at least one parent had to be a Permanent Resident of Canada in order for the child to be born with Canadian citizenship. Given the publicly known fact Ted Cruz renounced his Canadian citizenship in 2014, his parents apparently were either Canadian citizens or Permanent Canadian Residents on the path to Canadian citizenship when Ted Cruz was born in Canada. Furthermore, to become a Canadian citizen in the period 1967-1973 and retain the Canadian citizenship required the formal renunciation of all foreign citizenship and allegiance. Eleanor’s past marital infidelities and misconduct in Britain makes it an open question as to whether or not she acquired British citizenship that qualified her for 1 year expedited Canadian citizenship and committed acts that could or did expatriate her U.S. citizenship. There are reports alleging Ted Cruz was denied U.S. citizenship when Eleanor applied for a CRBA (Consular Report of Birth Abroad) at the U.S. consulate in Canada. She allegedly used her own birth certificate to unlawfully cross the border into the United States and later fraudulently acquire a U.S. passport for Ted Cruz. Given the way in which Ted Cruz has denied the public access to the Canadian and U.S. documentation relating to such events, he is effectively denying the public the ability to confirm or deny this fundamental question of his potential fraudulent acquisition of U.S. citizenship documents.

Second, the only form of U.S. citizenship that Ted Cruz or any other person born abroad without the protection of diplomatic immunity is naturalized U.S. citizenship under the authority of a U.S. legislative Naturalization Act. In the case of Ted Cruz the legislative authority applicable to his birth in Canada with an alien Cuban or Canadian father and a U.S. mother, if she retained U.S. citizenship, was the legislated U.S. Immigration and Naturalization Act of 1952, which grants a child born abroad as an alien the right to claim or not to claim retroactive and automatic naturalized at birth U.S. citizenship. Such legislated naturalized citizenship is not and can never be natural born citizenship in any way, shape, or form.

“The SCOTUS decision then goes on:
“And the Fifteenth Article of Amendment declares that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.’ The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.””

None of which changes the fact that the Constitution, the Amendments to the Constitution, and the Public Law enacted by Congress are all legislative acts that constitute Positive Law in contradistinction to common law. All persons who acquire citizenship by the authority of an executive act, statutory law, or constitutional law by such definition for centuries and millennia past acquires only naturalized citizenship. The Anglo-American cultures have always required a citizen father and mother and birth within the jurisdiction of the sovereign for qualification as a natural born citizen. All other persons whether born inside or outside the sovereign jurisdiction of the United States require the authority of a legislative or executive act to acquire naturalized U.S. citizenship.

“In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422”

“https://www.law.cornell.edu/supremecourt/text/114/417/ ; Boyd v. United States, 116 U.S. 616, 624, 625 https://www.law.cornell.edu/supremecourt/text/116/616/ ; Smith v. Alabama, 124 U.S. 465 https://www.law.cornell.edu/supremecourt/text/124/465/ . “

You are misrepresenting Minor v. Happersett by omitting where it said:

Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen — a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” [n7] and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. . . . The U.S. Supreme Court later left no further doubt with the statement: United State v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized....”

“The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274” “https://supreme.justia.com/cases/federal/us/91/270/case.html . [p655]”

Yes, that is correct, and 1 Kent 492 leaves no doubt that common law is:

Those principles, usages, and rules of action applicable to the government and security of persons and of property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. 1 Kent 492; in Bouvier, A Law Dictionary, 1892.

“Moore says in the relevant passage: “Where Congress has not provided, and no special reasons demand, a different rule, the rules of evidence, as found in the common law, ought to govern the action of the Court of Claims.””

Yes, and common law does so in contradistinction to the Positive Law of the legislative Immigration and Naturalization Act of 1952, which is precisely why a person born abroad with two U.S. citizen was born without any U.S. citizenship during the absence of a legislative naturalization act to authorize the grant of naturalized U.S. citizenship at birth.

“Smith says in the relevant passage: “There is, however, one clear exception to the statement that there is no national common law. The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of this court, in the application of the constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority. Moore v. U. S., 91 U. S. 270.”

Yes, and he was dead wrong in his statement, “The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” There is a wealth of quotations from the Founders and the authors of the Constitution explicitly commenting upon how they were deliberately departing from English common law. It was also quite impossible for the Constitution to be exclusively based upon English common law, because it was not until decades later that the case law of England came to be published and widely disseminated to the courts of law in the United States. American common law developed in parallel to English common law and mostly in isolation from English common law due to the lack of publication of the case law before the early to mid-19th Century.

“In Boyd: “No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing, which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show, by way of justification, that some positive law has justified or excused him. The justification is submitted to the judges, who are to look into the books, and see if such a justification can be maintained by the text of the statute law, or by the principles of the common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.”

“The legal point in each case is that Common Law is to be used to decide the definitions of words in the Constitution, constitutionality, and legality when no explicit definition is provided.”

That is correct, and the common law of England, British America, and the United States of America require and always has required birth with two citizen parents and within the jurisdiction of the citizen parent’s sovereign. Any other form of citizenship is a legal fiction of citizenship granted by the sovereign or by the sovereign’s legislative acts that constitute naturalization and naturalized citizenship.

“The case you cited, United States v. Wong Kim Ark, argued that Wong Kim Ark was under common law not a US citizen because his parents were Chinese and subject to the Emperor regardless of their location and thus he was Chinese: “Because the said Wong Kim Ark, although born in the city and county of San Francisco, State of California, United States of America, is not, under the laws of the State of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons and subjects of the Emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China. Because the said Wong Kim Ark has been at all times, by reason of his race, language, color and dress, a Chinese person, and now is, and for some time last past has been, a laborer by occupation.”

“This seems to me to imply that under common law, since until this ruling the child of a Chinese citizen gained what US law recognized as common law Chinese citizenship at birth and not US citizenship, the child of a US citizen analogously gained US citizenship under common law at birth, even if born overseas.”

No, that is totally and utterly wrong; because you are confusing the differences between a natural born citizen versus a naturalized citizen. The controversy over the purported U.S. citizenship of Wong Kim Ark was only a question of whether or not he was in fact qualified for naturalization at birth by the authority of the legislative act of the 14th Amendment to the Constitution, 1866 Civil Rights Act, and various naturalization acts. Under the common law requirement for citizen parents, Wong Kim Ark could not possibly qualify as a natural born citizen of the United States.

“If, as I consider reasonable, you read the Constitution as Scalia did, under the meanings current when adopted, then common law citizenship would derive from the citizenship of the parents in the case of Wong Kim Ark and thus, since that was the originalist interpretation, in the case of Ted Cruz.”

In fact “under the meanings current when adopted” the father’s citizenship status governed the citizenship of the wife and the children under common law and under statutory law. Under English, British, British American, and U.S. common law and statutory law natural born citizenship status was qualified only by birth with two citizen parents within the jurisdiction of the parents’ sovereign. Under English, British, and British American common law and statutory law any person with two citizen parents born outside the jurisdiction of the parents’ sovereign could only acquire subject status under the authority of letters patent by the sovereign or subject status or natural born subject status by a legislative naturalization act or positive law by the Parliament. Under no circumstances whatsoever other than the protection of diplomatic immunity could a child born abroad qualify as a citizen or natural born citizen in England. Such persons could only be naturalized as subjects and never as citizens.

“Wong Kim Ark was not the first case where legal citizenship was assumed to match that of the parents, just the first case where the Supreme Court applied the Fourteenth Amendment to override that common law determination of citizenship.”

The common law, English or U.S., was never the authority for the purported U.S. citizenship of Wong Kim Ark. From beginning to end his claim for U.S. citizenship was based upon the legislative acts and positive law providing the legal authority to grant the legal fiction of U.S. citizenship upon the children born within the jurisdiction of the sovereign United States with one or two alien parents. The dispute in the case was over the question of whether or not the allegiance owed by the child and the child’s parents at the time of the child’s birth to the foreign sovereign, the Emperor/empress of China, caused the child’s birth to be within or without the sovereign jurisdiction of the United States and its naturalization laws responsible for conferring naturalized U.S. citizenship upon children born on U.S. soil. Natural born citizenship had nothing whatsoever to do with the citizenship claims of Wong Kim Ark.

“Wong Kim Ark seems to imply that citizenship was inherited from parents, if the parents remained subject to their head of state, regardless of where a child was born.”

During the period of time from 1802 to the special naturalizations acts enacted by Congress to address the issue, any child born abroad with two U.S. citizen parents was denied U.S. citizenship due to the absence of any naturalization acts specifically authorizing such U.S. citizenship. In every one of these arguments over this issue of citizenship the supporters of Barack Hussein Obama, John McCain, Ted Cruz, Marco Rubio, and other ineligible candidates for POTUS refuse to acknowledge that historical fact. Instead, every convoluted argument remotely imaginable is dredged up in complete contempt and disregard for the historical events and related U.S. Supreme Court decisions that confirmed such children did not and could not inherit U.S. citizenship from one or both parents without a naturalization act to grant naturalized citizenship.