Discussion: Centuries-Old English Law May Hold The Answer To Ted Cruz's Birth Issue

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But in McCain's case, he was born: 1) In a U.S Territory, the Panama Canal Zone, which at the time was a legal territory of the United State, just as Arizona was when Goldwater was born and just as Puerto Rico is now; and 2) he was born on a U.S. military base, also legally considered to be U.S. territory.

That's not quite how it works. To be a US citizen born outside the US one has to have a) at least one parent who is a US citizen (though it's more complicated if only the father is), and b) that parent must have lived in the US for certain number of years after achieving certain age.

It's extremely unlikely that people who never filed the citizenship paperwork ever lived in the US, so their children could not be US citizens anyway (unless born in the US of course).

I would also argue that such persons do not "claim citizenship". They are citizens at birth, but it has to be documented. Folks born in the US have their birth certificate, and the Consular Certificate of Birth Abroad is the equivalent for those born outside the US. Look at it this way, if you were born in the US but never had a birth certificate, you might have a hard time proving you're a US citizen, too.

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The Constitution says only natural born citizens can be President. The statute says who is a citizen. The issue under dispute, which is not resolved in either one, is exactly how a "natural born" citizen differs from any other. As I wrote in the rest of my comment, the clearest explanation is that it means anyone who is a citizen at birth.

ETA: this article that Skippy linked to above says it much more articulately and comprehensively than I can.

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Well, it is a statute, but the point is that this reveals that the attitude of those in the government very near the founding and including some founders felt that this constituted citizenship at birth and it's hard to argue natural born citizen means anything else with a straight face (unless, of course, you have a legal ax to grind; it's what lawyers do).

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"Why should American constitutional law in the 21st century depend on what English law from the 1300s?"

The reason is fairly simple to understand. If the words in the Constitution are to mean anything at all, then they must be at least they must be tied to the spirit and context in which they were originally used. This is true, whether you believe in a very restricted "original" interpretation of the meaning of the words in the Constitution or whether you believe in an interpretation of the meaning of the words that allows their meaning to evolve in the context of their "contemporary" legal meaning.

The specific requirements for eligibility for the US Presidency don't simply demand that a person be a citizen, they specifically require a person to be a "natural born" citizen. The meaning of this common law term dates back to English common law and it is evident that the meaning of the term, as is amply evidenced in virtually all English Common Law as well as in the letters and discussions surrounding the writing of the US Constitution indicate that "natural born" refers specifically to the jurisdiction and sovereignty of the territory where a child is born and not to that of where his parent or parents were born.

There has been much talk about this being an "unsettled" matter of law. However, this is not true, since the US Supreme Court did rule specifically on the question of "natural born" in a case US vs Ark 1898 and specifically researched the meaning of "natural born" in the context of Common law to establish its meaning. After much reference to the meaning of the term in both English Common Law and with respect to its legal meaning at the time the Constitution was written, the Court ruled that "natural born" meant precisely that a person is considered "natural born", if and only if, they were born within the sovereign territory of the United States. In fact, this is precisely why Mr. Ark won his case, even though both of his parents were Chinese and not Americans. Mr. Ark was born in San Francisco.

It should be noted that in US vs Ark, both the majority and minority opinions came to the same conclusion that "natural born" means specifically that a person is born within the jurisdiction or sovereignty of the United States. It is clear that had Mr. Ark not been born within the jurisdiction of the United States he would have lost his case and would have been deported as the US was trying to do.

It is further worth noting that the Court in US vs Ark also made specifically clear that the US could not simply pass a law, at that time the Chinese Exclusion Act, and use it to alter the meaning of "natural born". They specifically referenced the fact that since that term was used in the Constitution, its meaning could not be altered by statute alone but would require a Constitutional amendment. The Court ruled that no law can amend the Constitution of the United States and any law that the government may attempt to use to do so is unconstitutional in its application. Congress has the power to naturalize, but it does not have the power to amend the meaning of the constitution via statute.

Legally, since the ruling in US vs Ark remains precedence, Mr. Cruz is ineligible to hold the office of the Presidency because he was born in Calgary, Canada as his Canadian birth certificate clearly demonstrates. He remains in ineligible under US law, at least until he gets a constitutional amendment passed permitting him to do so or he can provide proof that US State Department specifically claimed US jurisdiction over his birth. So far Mr. Cruz has not provided that critical piece of evidence.

The present court may attempt to reverse the precedent. However, to do so it will clearly have to waive the original meaning of the term in the Constitution, previous Supreme Court precedent, and more than 500 years of Common Law to do it.

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I'm still wondering if he is human.

Or some kind of crazed killer robot.

Yeah, we're in agreement. That doesn't stopping the MSM from noting that "most legal experts agree" that Cruz's candidacy is golden.

As far as I recall, the first time it came up was in 2008 with McCain, who (arguably) was born on a military base which has been considered to be American territory. (What if he was born in the American Embassy somewhere?) It first took off because of Oily and Trump and the rest of the birthers, for whom (as I've noted) it was critically important that Obama was born in Kenya. Now, not so much.

Personally I would agree that "natural born" should mean born on American soil (including embassies, military bases and possessions).
It would be most helpful, I think, if the SCOTUS would take the time to clarify this point of law.

I just don't agree with critical thinker's thought. A child can be a citizen or not; a citizen can be natural born or not. There's no provision for notifying "the US" (who would that be, the President? Secretary of State?) that "my kid was just born so make a note he's natural born". The premise of his/her analysis is that someone who doesn't have to be naturalized is natural born. He may be right; I'm not sure. But it sure as hell isn't self evident.

It would be fitting if this arrogant anti-immigration fanatic was found not to be eligible for the Presidency because of his immigration status.

What was the point of your original comment? It was:

Blackstone has been used numerous times in the courts to determine definition and intent of the framers.

My original comment said that citing "centuries old English law" to decide this question was misguided. Something Justice Thomas would do. It wasn't that we should not use it at all. It should be used with other things to determine what the law means in the U.S. today.

You said Blackstone has been used to decide legal questions. Okay. So? As I said, using him alone doesn't do much to advance answering legal questions in another country and century. I hold to the comment and it is a sound addendum to your own even if you were merely stating a fact and both comments can stand side by side. Red flag. Ruling on field overturned.

Cool. :relaxed: And I, a random internet person, also agree. Once a controlling legal authority eventually takes this up, I'm sure they'll decide in Cruz's favor (which would also be in imaginary-Kenyan-Obama's favor, which will be another reason for the base to burn Roberts in effigy, which is always fun).

And I DO look forward to it getting resolved. I ain't David Bowie, but I can spot a trend. This nonsense has been swirling around McCain, Obama (without basis in reality), Cruz, and now even Rubio. This needs to end. As far as I can tell, the broadest definition of "natural-born" that Scalia would vote for would be whatever supported a candidate he already likes, legal arguments be damned. So the best chance of having it end on the side of decency is here right now and if that proves to be a distraction to Ted Cruz, then ROFLMAO.

Some things are in effect decided by parties other than the Supreme Court.

Each time a state electoral official accepts Cruz's name on the ballot for President, officials who swear or affirm to follow the U.S. Constitution, they are deciding the question. It is unlikely this will reach the Supreme Court. And, the debate will continue even after the Supreme Court decides. Everyone didn't suddenly think Bush was legitimately President in 2000 because Bush v. Gore settled a major point 5-4.

The sort of people fascinated about these things are the same sorts in various cases who think Roe v. Wade be damned that abortion is murder, but the government is illegitimately allowing it. What some justices think won't settle it for them.

Cruz is the Cohiba Candidate... from Cuba, you can buy 'em in Canada, you're really not supposed to bring 'em in into the U.S, but everybody at Goldman Sachs has 'em in their coat pocket.

One wonders if Supreme Court Chief Justice John Roberts is mouthing under his breath "Holy fuckin' shit, we might have to hear these cases!"

Fair enough. How about my friend whose father was on a job in Canada when she was born? The family moved back when she was just a few months old and she's been here ever since. In her case, I think it's safe to say she's never running for president (head of her dept at a major university is hard enough), but the point is the same.

The law professor would argue that foreign born is foreign born, so too bad for your friend! Cruz, of course is a triple threat: born in Canada, his father is Cuban, and his mother - while claiming to be a U.S. citizen - is clearly registered on Canadian-citizen voting rosters. He's about as "Texan" as George W. Bush... all hat, no horses

Bear in mind that the bit about timely notification is from the commenter I was replying to, which is why I said "you describe a situtation in which...", but a correction is welcome anyway.

The commenter was telling us that it was pretty evident that Cruz was a natural born citizen of the US. I was pointing out that the situation described didn't make it so self-evident - to me, at least.

Your comment provides yet another example where the citizenship status of a newborn is discussed in clear terms while the term "natural born" is not mentioned at all.

I think everyone is my age and born before 1952, my lord these guys are mere puppies.