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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsTed Cruz is not eligible to be president.
by Mary Brigid McManamon January 12
Mary Brigid McManamon is a constitutional law professor at Widener University’s Delaware Law School.
'Sen. Ted Cruz (R-Tex.) is not a natural-born citizen and therefore is not eligible to be president or vice president of the United States.
The Constitution provides that “No person except a natural born Citizen .?.?. shall be eligible to the Office of President.” The concept of “natural born” comes from common law, and it is that law the Supreme Court has said we must turn to for the concept’s definition. On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are “such as are born within the dominions of the crown of England,” while aliens are “such as are born out of it.” The key to this division is the assumption of allegiance to one’s country of birth. The Americans who drafted the Constitution adopted this principle for the United States. James Madison, known as the “father of the Constitution,” stated, “It is an established maxim that birth is a criterion of allegiance. .?.?. [And] place is the most certain criterion; it is what applies in the United States.”
Cruz is, of course, a U.S. citizen. As he was born in Canada, he is not natural-born. His mother, however, is an American, and Congress has provided by statute for the naturalization of children born abroad to citizens. Because of the senator’s parentage, he did not have to follow the lengthy naturalization process that aliens without American parents must undergo. Instead, Cruz was naturalized at birth. This provision has not always been available. For example, there were several decades in the 19th century when children of Americans born abroad were not given automatic naturalization.' >>>
https://www.washingtonpost.com/opinions/ted-cruz-is-not-eligible-to-be-president/2016/01/12/1484a7d0-b7af-11e5-99f3-184bc379b12d_story.html
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underthematrix
(5,811 posts)Spider Jerusalem
(21,786 posts)Naturalization Act, 1790:
...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
http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html
See also opinion from two former US Solicitors General (one who served under Bush II and one who served under Obama): http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/
elleng
(130,903 posts)into a natural-born citizen.'
'The concept of “natural born” comes from common law, and it is that law the Supreme Court has said we must turn to for the concept’s definition. On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are “such as are born within the dominions of the crown of England,” while aliens are “such as are born out of it.”'
You may disagree with her conclusion. That is NO reason to engage in an ad hominem attack. She is a legal historian.
Mary Brigid McManamon is a Professor of Law at Widener Law Delaware. She received her Bachelor of Arts degree from Yale University in history. Her Doctor of Law degree was awarded by Cornell University, where she served as a managing editor of the Cornell International Law Journal.
Spider Jerusalem
(21,786 posts)to see how many people of whom one would expect better are too goddamned stupid to grasp the distinction between "natural born" and "native born". One does not need to be born on US soil to be a "natural-born citizen"; acquisition of US citizenship at birth from a US citizen parent is sufficient. (And I just cited a US citizenship law that defines a "natural-born citizen" as one born abroad to a US citizen parent! Can't you read?)
elleng
(130,903 posts)'The Constitution provides that “No person except a natural born Citizen .?.?. shall be eligible to the Office of President.” The concept of “natural born” comes from common law, and it is that law the Supreme Court has said we must turn to for the concept’s definition. On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are “such as are born within the dominions of the crown of England,” while aliens are “such as are born out of it.” The key to this division is the assumption of allegiance to one’s country of birth. The Americans who drafted the Constitution adopted this principle for the United States. James Madison, known as the “father of the Constitution,” stated, “It is an established maxim that birth is a criterion of allegiance. .?.?. [And] place is the most certain criterion; it is what applies in the United States.”
Cruz is, of course, a U.S. citizen. As he was born in Canada, he is not natural-born. His mother, however, is an American, and Congress has provided by statute for the naturalization of children born abroad to citizens. Because of the senator’s parentage, he did not have to follow the lengthy naturalization process that aliens without American parents must undergo. Instead, Cruz was naturalized at birth.'
There is a distinction between 'natural born' and 'naturalized,' as was Cruz.
Spider Jerusalem
(21,786 posts)the idea that "the concept of natural born derives from common law" is belied by the wording of the Naturalization Act of 1790 that I just fucking cited. Clearly it doesn't just derive from the common law when there is an existing precedent that defines it as "one born to a US citizen parent anywhere in the world".
Hassin Bin Sober
(26,327 posts)But I have a question:
If the original intent was that natural born means born on US soil, can an ACT of Congress change the meaning of "natural born"?
People keep citing acts of Congress as clarifying or even changing what was meant by natural born.
Wouldn't clarifying or amending the meaning of a Constitional clause require to doing a proper Constitutional amendment?
It seems like a short cut. And the fact it's come up in the acts cited up thread and more recently in 2008 on behalf of MCcain leads me to believe there is at least questions.
What other clauses can Congress clarify? Can Congress pass legislation that says having a P.O. Box makes you a resident? Meaning someone with a mailing address in The US for 14 years satisfies the residency requirement?
elleng
(130,903 posts)If the original intent was that natural born means born on US soil, can an ACT of Congress change the meaning of "natural born," and that's exactly Professor McManamon's point.
In fact the only final determination of the issue must be made by the Supreme Court, IF it ever arises in a proper case or controversy. We shall see. Time for bed! 
Spider Jerusalem
(21,786 posts)
unc70
(6,113 posts)See my response #46
Jim Lane
(11,175 posts)One principle of statutory (or constitutional) construction is to assume that there was a reason for the wording chosen. The attack on Cruz's eligibility rests on the argument that "natural born citizen" is precisely equivalent to "person born in the United States". Well, if that were the intended meaning, why didn't the Framers just say that?
Here's the actual wording:
They could easily have written:
That would have been much simpler, clearer, and easier to apply.
The most natural reading of the actual language is that it simply refers to someone who was a citizen at the moment of birth, without a subsequent naturalization proceeding. It doesn't define "natural born Citizen", and therefore recognizes that the definition may change over time. That leaves open the possibility that subsequent changes in the law will affect who was a citizen at birth.
Congress can't amend the Constitution but can change the facts to which the Constitution applies. For example, the Due Process Clause of the Fifth Amendment protects private property from takings by the federal government: "{N}or shall any person . . . be deprived of life, liberty, or property, without due process of law...." That doesn't give anyone a right to federally owned land. BUT when Congress passed the Homestead Act, by which vast stretches of federally owned land were conveyed to private individuals, it created rights that were then covered by the Due Process Clause. Today, it would be unconstitutional for the federal government to confiscate lands that were once publicly owned. Congress could have chosen to retain such lands, but when it chose to convey them, it created rights in the recipients (and their successors in interest) that now have the protection of the Constitution. I think the same is true of the Congressional enactments that confer citizenship at birth upon someone in Cruz's situation.
elleng
(130,903 posts)and there's the 2d Amendment! 
prayin4rain
(2,065 posts)citizenship. Right? Or did I misunderstand something?
Jim Lane
(11,175 posts)First, any Cruz birther is likely to meet the same roadblock as the Obama birthers did: You can't even get a court to examine birth certificates or to interpret the law, because your challenge gets thrown out for lack of standing.
For my part, I don't think it's a vested right in citizenship. That would imply that some further step is needed. The law could be that such a person has a right to be naturalized without meeting the normal requirements (such as the renunciation of violence to overthrow the government). That isn't what the law says, though. It doesn't require the Cruz types to go through a naturalization proceeding. There's a form that the parents can file with the U.S. embassy or consulate, but it's just for convenience of proof, not a requirement of citizenship.
Thus, I'd say that Cruz, at birth, didn't have a vested right in citizenship; he had citizenship. Obviously, though, some scholars disagree.
prayin4rain
(2,065 posts)is not in dispute to my knowledge. The sole question is whether that canadian locale, US citizenship through his mother alone, is "natural born" citizenship.
I thought your first post was saying that although Congress has no power to interpret and define words in the Constitution, Congress can create rights (by statute or other means) that, once given, implicate other Constitutional rights, such that the initial right cannot then be easily taken back by a later court declaration that the Congressionally confered right was actually unconstitutional.
Vested rights are present rights as often as they are future rights and some present rights have not vested. In your land analogy, the persons presently owned the land and also had a vested right to own the land. I am presently a regular natural born citizen and it would be difficult for a court decision to change the nature of my citizenship, at this point, since it has long since vested.
So, anyway, I did misunderstand your first post. The question remains, is Cruz's present citizenship an automatic, instantaneous naturalized type of citizenship, or is it simply natural born citizenship. I, too, lean towards natural born, but I don't think the professors who lean the other way are stupid.
Jim Lane
(11,175 posts)I personally think that "an automatic, instantaneous naturalized type of citizenship" is a very strained reading, with no textual basis, but you're right that some people who aren't stupid appear to be espousing a theory that could be described that way.
The simple answer (well, evasion) is just to get back to standing. No court will decide this issue. The only way it comes up is if there's an issue in Congress about whether to count any electoral votes cast for Cruz. If Cruz clearly won the election, I think Congress would be very reluctant to decide that he's not eligible, no matter how much they despise him.
Act_of_Reparation
(9,116 posts)An ad hominem is a personal attack deployed in place of an argument. Yes, the poster called you "stupid"... and then addressed everything you posted.
treestar
(82,383 posts)by using "natural" they gave law professors everywhere an issue they can argue. And if it went to court somehow, both sides would have an argument.
They probably meant born on US soil, as that was their reason for the restriction. A lot of immigrants were from Britain, the recent enemy, in those days. Being born and raised in the US would make it more likely you wouldn't be some sort of undercover Brit looking to undermine the US.
Spider Jerusalem
(21,786 posts)if they had, I can't really imagine that a Congress that included members of the Constitutional convention would pass a law that defined "natural born" as "born to a US citizen parent abroad".
And in any case what they meant is rather irrelevant as the general consensus of legal opinion interprets "natural born" to include anyone who is a US citizen at birth.
moondust
(19,981 posts)with Lawrence O'Donnell Wednesday night and cited some other cases to support her positions. The 10-minute clip is available here if you're interested:
http://www.msnbc.com/the-last-word/watch/trump-cruz-nervous-about-2016-eligibility-601534019769
elleng
(130,903 posts)that's where I got her name. The interview impressed me, which is why I decided to post this.
Stellar
(5,644 posts)Maybe the Republic0n establishment will jump all over that! You know how they feel about that subject. 
grossproffit
(5,591 posts)Yet...it's not.
elleng
(130,903 posts)
Angleae
(4,482 posts)As such the only thing referring to "Natural Born Citizen" is the US Constitution. Also, the sentence after the one you posted would indicate the Cruz is probably not a natural born citizen as his father is cuban and likely never resided in the US.
"Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States"
Spider Jerusalem
(21,786 posts)the relevant one here being the Immigration and Naturalization Act of 1952:
(USCIS on citizenship at birth through parents)
https://www.uscis.gov/us-citizenship/citizenship-through-parents
unc70
(6,113 posts)The Act of 1790 is the only use of "natural born" on US Statutes. That Act was explicitly repealed by the Act of 1790. At most, only those born during that five year period could be affected. In all other cases, the grant is for citizenship but not "natural born".
(I do not believe that the Constitution grants the power to Congress to bestow natural born status. You are born in the US or you are naturalized.)
Spider Jerusalem
(21,786 posts)and "natural-born". (Someone who is born abroad with a US citizen parent is a US citizen at birth and does not need to be naturalised.)
Act_of_Reparation
(9,116 posts)From the Naturalization Act of 1795:
unc70
(6,113 posts)Only the Act of 1790 granted natural born status. It was repealed in 1795. The Act of 1795 and all later naturalization acts use just citizen, not natural born citizen.
See my post 47 for more.
alcibiades_mystery
(36,437 posts)Due to a mechanical problem, the plane must find a place to land, and the only available nearby airport on the route due to weather is Toronto. There the plane lands. The woman, eight months along, goes into labor, and delivers safely in a closest hospital in Toronto. She is a US citizen, her husband is a US citizen, neither has ever been to Canada before. As soon as she is well enough to do so, she returns to Boston with her child. Is the child a natural born citizen of the United States?
The answer, of course, is yes, and has probably always been yes under similar circumstances. Certainly, since the 1950's, the answer is indisputably yes, and one need not even posit such an extreme case.
The insane strict constructionism being applied to this question by the legal scholar is just a silly parlor game. US citizens born abroad for whatever reason remain natural born citizens.
elleng
(130,903 posts)and no silly parlor game, it's constitutional law, which is difficult, and often demands strict construction.
Spider Jerusalem
(21,786 posts)It's REALLY hard for me to not interpret this wilful ignorance of established facts as being a weird and ugly manifestaton of American nativism and xenophobia.
elleng
(130,903 posts)congenital inability to understand differences of opinion and to avoid ad hominem attacks.
Spider Jerusalem
(21,786 posts)Fact: "Natural born citizen" is defined in statute law contemporaneous with the US Constitution as one born abroad to a US citizen parent. Fact: that definition has not been altered by subsequent statute law. Fact: Subsequent statute law allows for acquisition of US citizenship at birth through one's mother as well as one's father. Fact: one who is a US citizen at birth (by virtue of having a US citizen parent) does not require naturalization as one is already a citizen. (One may need to supply proof of citizenship, but this is not the same thing.)
You can make all the assertions to the contrary you wish, but the lack of support for those assertions in statute law precedent and US nationality law makes doing so rather silly.
unc70
(6,113 posts)What statute other than the Act of 1790 (repealed 1795) do you think grants natural born status? There isn't one. End of your argument.
Spider Jerusalem
(21,786 posts)That law was contemporary with the Constitution (1790); it was passed by a Congress which included members of the Constitutional Convention. The wording of that law would indicate that the understanding of "natural born citizen" as intended in the Constitution is "one born to US citizen parents".
There is sufficient evidence of precedent here in British law (which would have affected the understanding of "natural born" of the authors of the Constitution); see the Foreign and Protestants Naturalization Act of 1708, which says: "the children of natural-born subjects (born abroad) shall be taken to be natural-born subjects". https://archive.org/stream/statutesatlarge00britgoog#page/n506/mode/2up
Continuing to make the same ignorant and wrong argument doesn't make it not wrong.
unc70
(6,113 posts)Suppose we were to assume your assertions regarding the Act of 1790, the context of its time, and that the Constitution actually granted to Congress the power to redefine "natural born"; even in that scenario, the Act of 1795 refutes your claims:
1) The historical context, the participants, and the institutional memory in 1795 was essentially the same as five years previous;
2) The Act of 1795 explicitly repealed the Act of 1790 in its entirety including its mention of natural born;
3) The Act of 1795 defines several rules granting citizenship, but in no case a grant of natural born citizen. If their intent had been as you argue, they would have clearly stated their intent explicitly, as they had just five years prior, on a case by case basis; but the Congress did not;
4) No statute since 1790 has used the term natural born, so none of them have granted natural born status to anyone since 1795 and the repeal of the Act of 1790.
I have simplified this argument so that you might understand.
Spider Jerusalem
(21,786 posts)The historical context didn't change; "natural born subjects", in British and before that English historical usage since 1350 (so for over 400 years!) included "children of English/British subjects born abroad". No subsequent statute has specifically defined "natural-born citizen" as the 1790 Act did, but the meaning is pretty clear, and it has consistently been interpreted as it was defined by the Act of 1790 and by British nationality law before that--that is, a child born to a US citizen parent acquires that citizenship at birth and is ipso facto a "natural born citizen".
unc70
(6,113 posts)Doesn't matter whether it is defined elsewhere, the "definition" of 1790 was nullified by the Act of 1795. No one after 1795 has been naturalized as a natural born citizen.
Also note that there is a large difference between the meaning British "subject" versus US "citizen".
I'll post links to significant articles on citizenship and natural born. Relying of Wiki gives one an inadequate understanding.
Spider Jerusalem
(21,786 posts)which includes Ted Cruz, because his mother was a US citizen who had resided in the US for at least five years after age 14. You can argue to the contrary as much as you want, but it just makes you look silly.
http://www.theatlantic.com/politics/archive/2016/01/donald-trump-ted-cruz-birther-argument/424104/
Bonx
(2,053 posts)alcibiades_mystery
(36,437 posts)Your professor is wrong and so are you.
Jim Lane
(11,175 posts)Without going back and looking this up again, I think the law in effect at the time both Obama and Cruz were born (a law since changed) is that a child born abroad is a U.S. citizen at birth if:
(1) both parents are citizens; OR
(2) one parent is a citizen and that parent meets certain residency requirements, which I think was ten years of residence in the United States including at least five years of residence after his or her fourteenth birthday.
Obama's mother, being only 18, didn't meet the second test, so Obama's citizenship rests on the Fourteenth Amendment and his birth in Hawaii. Cruz's mother, however, was older, and no one has ever suggested that she didn't meet the requirements.
I'm agreeing with you that Cruz is eligible. I'm just pointing out that your specific example is not apropos.
alcibiades_mystery
(36,437 posts)The OP feels that even in the limit case of the child born in Toronto due to plane difficulties, the child is NOT a natural born citizen. Even that limit case!
Any case with even slightly more complexity (of parentage, residency, etc.) is beside the point for the OP a fortiori, since she believes even our Toronto baby fails the test for natural born. Needless to say, her position is ridiculous relative to both the Constitution and current (long-standing, nearly 60 year-old) statute. Even if our goal was to divine the intentions of the framers, one would have to believe them to be quite stupid if they ruled out potential leaders due to trivial accidents of birth like the one described.
In the end, it doesn't matter, though, since no judge is going to declare to the millions of natural born Americans born abroad in the last 60 years that they are not natural born after all, but went through a non-existent automatic "naturalization process" during the course of being born.
It is the completely inconsequential nature of the professor and the OP's speculations that make them little more than a parlor game.
Jim Lane
(11,175 posts)Let's change your diversion to Toronto into a diversion from Toronto. The plane took off for Vancouver en route to Toronto, but, because of weather or engine trouble, was forced to divert to Minneapolis/St. Paul. On board are a pregnant woman and her husband, both Canadian citizens (but neither a diplomat). Soon after the plane lands in Minnesota, she unexpectedly goes into labor and gives birth in a Minnesota hospital. It's clear that that child is a U.S. citizen. It's also clear to all but the nuttiest birthers that the child is a natural-born citizen and is eligible to become President some day. (Some whack jobs said that Jindal, born in the United States to noncitizen parents, was ineligible, but that's a fringe view even within the generally fringey birther clique.) The kid can go to Canada once the weather clears, be brought up there, never set foot in the United States, and yet return to the U.S. for the first time 60 years later and be eligible to become President.
By contrast, Jennifer Granholm, born in Canada to noncitizen parents who brought her here at age 2, is ineligible, even though she was raised here for all her formative years. She's much more of an American than the Minnesota airplane baby. Yet, because of trivial accidents of birth, the Minnesota baby is eligible and Granholm is not.
I draw two conclusions. First, you can't disprove a theory by showing that it gives great effect to trivial accidents of birth. Second, the provision as currently written and applied is for that reason silly. I'd be fine with eliminating it altogether, trusting to the voters not to elect a fifth columnist. If some protection were to be retained, it could say simply that no one is eligible who hasn't been a citizen for at least 35 years.
nadinbrzezinski
(154,021 posts)the natural born idea is an 18th century concept that has mostly bit the dust in international law.
Both examples. the kid is a citizen of the country that accidentally they were born at. But by blood (aka parents) they are citizens of the other.
Under international law kid could claim either citizenship, unless of course we are talking France that recognizes double from the git go.
of course then there is the oath of allegiance for naturalized US Citizens where new citizens basically resign any allegiance to other places. But this is common in other countries. Alas canada does not have that... so I guess canucks accept dual citizenship, because we don't.
here is the US Oath.
So it gets complicated also by modern standards.
I think personally that the modern standard of being born to US Nationals inside the US or outside, the US should be enough, and I think International Law agrees, but that will have to be clarified by a court of law, perhaps the USSC.
treestar
(82,383 posts)As a pompous birthed once told me. Which is true. It would be tough to litigate since someone has to be elected President for whom an issue arises. If Cruz won the democrat might have standing to sue. Or the veep.
Since the courts do not make advisory opinions we will likely never know for sure.
WillowTree
(5,325 posts)Though it's always fun to pop some corn and pour a glass of wine and watch people try.
elleng
(130,903 posts)
backscatter712
(26,355 posts)I just want to watch Cruz deny it... 
elleng
(130,903 posts)
Turbineguy
(37,329 posts)He's a republican. The law does not apply to him the same way it does to others. Especially the Constitution.
elleng
(130,903 posts)NO PROBLEM!
SammyWinstonJack
(44,130 posts)Whatever it takes.
world wide wally
(21,743 posts)He's an asshole
NobodyHere
(2,810 posts)Or a naturalized asshole?
Scootaloo
(25,699 posts)Satisfyingly poetic, sure, but still bullshit.
malaise
(268,997 posts)Obama was born in a US state and ReTHUGs decided on their own that he was not born in Hawaii.
Same Cruz was a birther despite two facts - Obama' place of birth and his mother's place of birth.
Now he's using said mother argument - fugg him.
yellowcanine
(35,699 posts)They wanted to say that it mattered where he was born so they tried to make the case that he was not born in Hawaii. In hindsight, Obama probably should have said. "It does not matter where I was born. I would still be a citizen because my mother was a citizen. I was actually born in Hawaii but I see no need to prove it because these folks will not accept the proof anyway."
malaise
(268,997 posts)were Americans. It did not matter because only whites are American in their book.
Fuck Ted Cruz and the rest of the lying ReTHUG scumbags.
sharp_stick
(14,400 posts)he was a US citizen the moment he was born. It doesn't matter where he was born, he's a natural born citizen.
This Orly Taitz level of rhetoric is just dumb.
Vinca
(50,271 posts)Some legal scholars are arguing that when Cruz was brought from Canada back to the states he was automatically naturalized which, according to them, is not the same as natural born. I don't care if it sticks or not. I'm just enjoying the karma of it all.
hobbit709
(41,694 posts)She was listed on Canadian voter rolls at the time.
Nye Bevan
(25,406 posts)Jim Lane
(11,175 posts)If he had been born in Kenya he would not have been a US citizen at birth. The statute in effect at the time (1961) imposed residency requirements. It is absolutely clear that Obama's mother didn't meet those requirements. Therefore, Obama's only basis for eligibility (fortunately, an air-tight one) is that he was born in the US.
Cruz was definitely born abroad but there's no serious question that his mother did meet the statutory requirements. On that basis, he was a citizen at birth and is eligible.
HereSince1628
(36,063 posts)Everyone of us has an opinion about this topic. But it hasn't been subjected to and withstood the judicial process which regularly nuances meanings of Constitution standards and guidance.
Personally, I recognize a variety of challenges to loyalty not only of persons with foreign births or dual citizenship, but also those who claim loyalty to causes held above constitutional limits...things like the 'sovereign citizen' movement, the 'dominionist' movement, etc.
This little problem should go into the courts and 'get settled', not because of Obama or Cruz, but just because it does need to get settled.
I believe that process would have Cruz emerge as a citizen eligible to be president.
nadinbrzezinski
(154,021 posts)I disagree he will come out as a citizen due to things that have emerged recently from Canada.
I do not expect it to reach a court though. Politicians in general, republicans in particular, are above the law.
HereSince1628
(36,063 posts)I'd be more than OK with Cruz being ineligible. I just doubt that's going to happen based on what I know...
What I know about things about Cruz in Canada may be well behind the curve. Last thing I heard was his mother's name was on a list made several years after Cruz was born, that list identified her as a citizen of Canada eligible to vote.
Living in Wisconsin has turned my perspective on the possibility rules actually working a deeper shade of jade.
nadinbrzezinski
(154,021 posts)To vote in local elections from time to time,like we have. But if she did vote in a federal election that might put his citizenship at risk and eligibility to even be a US senator.
HereSince1628
(36,063 posts)His claim to citizenship is that it was transmitted at birth.
nadinbrzezinski
(154,021 posts)but those are the reports we have. I have no idea if mom was a foreign citizen voting in local elections, before or after he was born, which would mean no issue. She would still be a US Citizen.
If she voted in federal elections BEFORE he was born... and that is part of question.
The issue of natural born citizen is also to be solved.
But as I said, he is fine, he is a republican. This, I doubt, will end up in any bloody court, even if it should.
For starters we need to clarify the 18th century principle of the matter of birth. Ever since we had some folks write that document International law has changed. Now it recognizes citizenship by blood (aka mom is American), or by geographic location Why if you are born in a Mexican Aircraft in a US Airport, for example, you could claim Mexican citizenship.
In the 18th century that second was not present in common law.
This natural born is a principle of common law going back to Magna Carta... but even the brits have modernized their birth and citizenship issues.
With McCain there was strictly something to it. He was not born in US Territory as understood in the 18th century. Well Cruz definitely was not.
Takket
(21,566 posts)I sincerely hope that after Obama got crapped on for 8 years, and now Cruz with this same NONSENSE, that since both parties are victims of this partisan wrangling, that maybe they can actually get together and amend the Constitution so that the country is never embarrassed but this argument again.
Amendment: "If your mom or dad are a US Citizen when you are born, regardless of which side of a man-made line on a map your mom's vagina was on when she gave birth, you are also a citizen and eligible to run for President. Because: DUH."
Nye Bevan
(25,406 posts)and allow any US Citizen to run for president. Let the voters decide if he or she loves America enough.
ProfessorGAC
(65,042 posts)Given the family members and a couple of later acquaintances who became naturalized, it is a lot more hard work to become a citizen if not born as one.
Somebody willing to go through all that, both effort, redtape and time, is probably at least as good a citizen as i am.
unc70
(6,113 posts)But you know that.
Nye Bevan
(25,406 posts)exboyfil
(17,863 posts)Nye Bevan
(25,406 posts)should be based upon which horrible people it might allow to become president. There are plenty of US citizens who are not natural-born who could be excellent presidents. If the voters want to elect as president a US citizen who happens not to be "natural-born", why not allow them to do so?
A Simple Game
(9,214 posts)How about in vitro fertilization? Say the mother and father were both American citizens but the lab that did the work was in Canada? Now add a surrogate mother who is an English speaking German citizen and the child is born in Australia. Where do they bury the survivors? Just kidding about the survivors, everyone knows they would bury them in Germany.
As President of the United States it is well known that although you were born in Canada and your mother who became pregnant by artificial insemination from a sperm bank was not a US citizen but that the sperm donor was a citizen. Two years into your second term the sperm bank admits making a mistake and your donor father was actually Belgian. Can the Republicans have you removed from office, do we need to have a special election?
I could think of a hundred of these scenarios.
DrDan
(20,411 posts)Last edited Thu Jan 14, 2016, 11:34 AM - Edit history (1)
cannot believe we are allowing this birther crap to invade our thinking
mfcorey1
(11,001 posts) prayin4rain
(2,065 posts)This is not similar to the Obama kerfuffle in my opinion. With Obama, people were saying that he forged his birth certificate and was not born in Hawaii. He was born within the jurisdiction of the United States, he proved it ....and yet they all yammered on.
With Cruz, we know that he was not born within the jurisdiction of the United States, so, there's a legal question as to the meaning of natural born. With no Supreme Court decision directly on point, we can't know for sure what natural born means, all we can do is guess.
elleng
(130,903 posts)You are absolutely correct, with no Supreme Court decision directly on point, we can't know for sure.
SDJay
(1,089 posts)But I also hope that Trump jumps on this one with both feet and repeatedly. Let those assholes fight this out on that side for several months. That'd be great. The best would be for a question like this to come up at one of their monkey poop fights/I mean... debates.
Nye Bevan
(25,406 posts)as it's certain that Ted Cruz is constitutionally eligible for the presidency. Having said that, I can't deny that it's enormously amusing to watch him squirm.
yellowcanine
(35,699 posts)bullshit. Ted Cruz is not qualified to be President, but he is Constitutionally eligible. Mary Brigid McManamon is wrong.
UCmeNdc
(9,600 posts)Just like President Obama had to release his birth certificate, Cruz needs to show his birth certificate.
Why is Cruz dodging showing his records?
Nye Bevan
(25,406 posts)
UCmeNdc
(9,600 posts)Canada. I do not see anything saying born in the United States on that birth certificate to me.
Nye Bevan
(25,406 posts)WillowTree
(5,325 posts)And, because he was born in Canada, a Canadian birth certificate was issued. It doesn't change the fact that he was born to a mother who was a US citizen, making him automatically a "natural born" US citizen himself. If Canada chose to grant dual citizenship (which he has since renounced), that doesn't change the facts of his US citizenship.
Note that this certificate doesn't say anything about citizenship one way or the other.
Nye Bevan
(25,406 posts)Say Alan and Betty and Charles and Daisy are all US citizens, born and bred in the US. They all move to France. Then Alan and Betty have a son, Edward, and Charles and Daisy have a daughter, Fran. Edward and Fran are both natural-born US citizens since they are citizens from the moment of their birth. Edward and Fran live in France, and never reside in the US. Years later they marry (in France) and give birth to a son, Gerard. Despite Edward and Fran both being natural-born US citizens, Gerard is not even a US citizen, let alone a natural-born one.
See http://www.uscis.gov/us-citizenship/citizenship-through-parents
The idea is to prevent a neverending chain of US citizens who have no connection to the US. This does not affect the Cruz issue, however, because I don't think anyone disputes that his mother lived in the United States prior to moving to Canada and giving birth to him. But I see a lot of posters claiming that the child of a US citizen is a US citizen from birth, and that is not the case if the US citizen parent has not lived in the United States.
hughee99
(16,113 posts)Because it's not like they passed a law in 1790 that says this...
"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 Citizen"
Okay, the law did say that, but I'm sure the people from 1790 had no idea what the founders of our country actually meant, and certainly not with more understanding than a Widener University law professor 220 years later. 
Bonx
(2,053 posts)cringe worthy.
"Moops !"
TeddyR
(2,493 posts)That has specific meaning and is different than just being a "citizen." For example, to qualify to serve as a senator you only need have been a "citizen" of the United States for 9 years. The drafters of the Constitution used specific terms for a reason. Cruz may or may not be eligible, but it is clear that someone like Schwarzenegger is NOT eligible for the presidency, nor are any naturalized citizens, regardless of how long they have lived here. If you don't believe this issue matters for Cruz then I assume you think we should ignore the Constitution and any person who is a citizen is eligible for the presidency?
Bonx
(2,053 posts)elleng
(130,903 posts)Act of 1795 repealed the Act of 1790
The Act of 1790 is the only use of "natural born" on US Statutes. That Act was explicitly repealed by the Act of 1795. At most, only those born during that five year period could be affected. In all other cases, the grant is for citizenship but not "natural born".
(I do not believe that the Constitution grants the power to Congress to bestow natural born status. You are born in the US or you are naturalized.)
hughee99
(16,113 posts)really meant at the time. The Act of 1790 gives more insight to their opinions at the time than one can glean from a single English jurist or a single statement from James Madison (who incidentally was in congress at the time this was passed).
If the acts of 1795 (or 1798, or 1802) had more to say on the issue of being "natural born" then you'd certainly have an argument that the 1790 meaning is NOT what the founders intended, but as they're silent on the issue, I don't know how anyone could draw that conclusion.
If you want to know where I could tell for sure that the writer was talking out of their ass, it was this part.
"The debates on the matter reveal that the congressmen were aware that such children were not citizens and had to be naturalized; hence, Congress enacted a statute to provide for them. Moreover, that statute did not say the children were natural born, only that they should “be considered as” such. Finally, as soon as Madison, then a member of Congress, was assigned to redraft the statute in 1795, he deleted the phrase “natural born,” and it has never reappeared in a naturalization statute."
If Madison was so concerned about who is "natural born" and there was consensus on the issue, why didn't he clarify this matter at the time instead of removing it entirely and leaving ambiguity?
Of course, the part that really makes it clear is "that statute did not say the children were natural born, only that they should “be considered as” such". I think that is perhaps the weakest logic I've ever heard to dismiss an inconvenient point.
unc70
(6,113 posts)The Act of 1795 does not convey natural born. It specifies that they are citizens.
hughee99
(16,113 posts)The author of the OP's article suggests that they know what the founders really meant by "natural born". Many of those very same founders were the people that passed the act of 1790, so if there was some other consensus definition of that term, how did that phrase get there in the first place? When they repealed the act and replaced it in 1795, they didn't do it because they were unhappy with the description of "natural born" in that legislation. In fact, they were so concerned about it, they did NOTHING. The simply just removed the phrase and left the ambiguity.
The point is, the constitutional law professor assumes they know what was intended by the founders, but does a very poor job of proving it.
TeddyR
(2,493 posts)"Citizens" plural. So does that mean both parents have to be citizens (I've seen that argument)? Would the Founding Fathers in 1790 (or better yet the common law) recognize as a "natural born citizen" someone born outside the US to a US-citizen mother and a non-citizen father? I think the answer to that question is no.
hughee99
(16,113 posts)More than one child for this law to apply? Yes there's a great deal of ambiguity here if you are looking for it, which makes it very easy for someone to read this and see the interpretation they're looking for. It is, however clear, imho, that their original intent was NOT that "natural born" citizens MUST be born on us soil, even if the circumstances under which they can be born abroad are unclear.
hedgehog
(36,286 posts)of US citizens had to be granted US citizenship by Congressional mandate --and that provision could be repealed at any time. It would seem to me then, that they are not natural born citizens but citizens by courtesy.
elleng
(130,903 posts)Plain old citizenship isn't sufficient, under the constitution, but 'natural born,' which means MUST be born IN the US.
nadinbrzezinski
(154,021 posts)Mom has appeared in Canadian voter rolls. Mind you, Canada has allowed foreign residents to vote at times. Not always, and we have as well (19th century). But if mom voted in federal elections, was she a Canadian citizen? And if this is the case, is Mr. Cruz even eligible to serve in the Senate? Or has he been living a fiction (which mom would be at fault for) all these years?
No this is not crazy. Mr. Cruz may very well be a person without a state since he did resign his Canadian citizenship and an illegal alien of the United Ststes.
Spider Jerusalem
(21,786 posts)the foreign citizenship must be taken with "the intent to relinquish US citizenship" and a formal statement of renunciation has to be made before a US consul (and merely voting in a foreign election as a dual citizen does not extinguish US citizenship, either, see Afroyim v Rusk, 1967).
nadinbrzezinski
(154,021 posts)And as I said, she voted in an election which may be local.
And international and other nations laws make this muddy as hell.
I am a US citizen, naturalized. I know what the oath entails. My country of origin did not recognize dual citizenship six months before I took that oath. Literally an act of congress changed that. Not the US congress.
I know what the US oath implicates. If tne Canadian naturalization is similar things get a tad murky in a very real sense. You are talking of two national jurisdictions. And yes, this should see a court.
Alas....YONIKAR is at play here as well.
restorefreedom
(12,655 posts)the establishment plan all along was to get rid of cruz and trump so they could cram jeb! or rubio down the people's throats.
thank goodness that on the right, as on the left, people are refusing to eat establishment gruel. trump is looking good for the nom, and if he can't pick cruz as veep, he will pick someone equally unpalatable to the gopE
i am loving it
elleng
(130,903 posts)There is NO WAY to get this 'squared away before the primaries,' because the ONLY way to get a firm, final answer is with a decision from the Supreme Court on a Case and Controversy, which has to go through the judicial process.
This is a unique issue.
restorefreedom
(12,655 posts)there is a lot of chatter that trump would like cruz as veep, but he is smart enoughh not to embroil himself in a legal battle. i guess that leaves cruz out in the cold.
do you have any tissues? i think i might cry!
elleng
(130,903 posts)SO BORING!
merrily
(45,251 posts)used in Article II. The best clue, however, will be what, if anything, English law provided on this subject during the reign of Elizabeth I, as that was the law adopted by the colonies. And even that is true only if the decision is based on originalism. (Squints at Scalia.)
elleng
(130,903 posts)The professor discusses the English Common Law at the time, upon which she bases her conclusion, hence the title of her article (and this OP.)
merrily
(45,251 posts)Both statutory and common law, because the colonies adopted both. Then again, the law as to "natural born citizen" probably didn't change all that much between the time of Elizabeth I and 1787. I cannot believe though, that, in the case of, say, McCain, the SCOTUS will hold that being born on a military base overseas to which your parent has been assigned means you can never be President.
Lawrence Tribe made the distinction between the father and the mother, which I thought was interesting.
BlueMTexpat
(15,369 posts)somewhat baffling and quite tortured, IMO.
There are two processes by which an individual becomes a US citizen. One becomes a citizen either by birth (a natural process, i.e., natural-born) or by a legal process (naturalization).
The idea of "naturalization at birth" being a legal process is something that makes me seriously wonder about this individual's constitutional law credentials.
While it is true that children born abroad to US citizens were not always considered to be citizens at birth (or even if they were, they still had to fulfill certain residence requirements to retain it), the law changed in the 20th century to clarify that they are indeed. Period. There is simply no legal process involved. The majority view is that the distinction is (or at least should be) between the natural and the legal process.
Much as I hate to consider Cruz as eligible in any way whatsoever for the US presidency, this is the least substantive argument against him. If his mother was not a US citizen by birth or if she specifically renounced her US nationality prior to his birth, that is a different story.
