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

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#238

It is settled law, and that is why it is not a news story. I don’t see it anywhere on nbc, cnn, or fox right now. It is only a story in the echo chamber. It is every bit as much of a story as the Obama birther movement. To be mocked and ridiculed, not given any credence.

The key part you are missing is in this attempt to separate constitutional law from statutory law, which is not a valid way of looking at it. No where in the Constitution does it define what natural born means. For over 50 years by the time the Constitution was written, common law stated that natural born was defined by citizenship of parents, not by location. So we either need to look at what the English common law said and assume that is what the founders meant, or we need to look to statutory law to clear up ambiguity in the Constitution. Which is what the Congress did in 1795, which has been upheld by Congress repeatedly. So this separation of statutory law from constitutional law is entirely artificial and wouldn’t hold up in court. If Congress passed a law tomorrow that said “The term Natural Born Citizen is applied to anyone born to one or more American parents regardless of location of birth”, that would be a statutory law, and completely Constitutional.

I’m sorry, but you are in the fringe on this one. We are all there occasionally.

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#239

Why? Aren’t you punishing Americans who go work overseas by doing that? And punishing their children? This would also affect the huge number of military families that live off base in the more friendly countries. What happens if a kid of an American soldier is accidentally born at home? Or in traffic on the way to the base? Sorry, you missed it by 250 feet. If only you could have held it in another 90 seconds. What makes a kid born on this soil any better than a kid born to Americans somewhere else?

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#240

The truly sad thing is none of this STUPID debate has anything to do with whether or not Cruz actually deserves to be elected president.

Really, we here in America are going to be so foolish and so petty as to think it makes a damned bit of difference whether undeniably American citizen Ted Cruz is eligible or ineligible to be president based solely on the precise geographic location he exited his mother’s womb?

‘Natural born’ = born with at least one American citizen parent, thus conferring automatic citizenship with no need of subsequent registration or naturalization papers. End of story. Anything else is sophistry.

Now can we stop indulging Donald Trump’s racist trolling and get back to noting all of the rational reasons Ted Cruz would be a terrible president?

#241

When the Constitution was written, travel was difficult and people did not move around a lot. So it seems reasonable to believe that the fact of being born within a territory or not would not have been a reasonable criterion. Parents of people in the elites do sometimes work overseas, and do have kids there. It would have seemed silly to the Founders, one could argue, to have made the accident of birth location dispositive.

But the trouble with that argument, even for a “Living Constitution” interpreter, is that many people actually do retain a special feeling about their birthplace. And to that extent, they have something akin to a conflict of interest if, as President, chief executive and head of state, they have dealings with that country, its allies or, for that matter, its enemies. The Founders were worldly and realistic people, and it’s entirely reasonable to suppose that they actually meant what they said, relying on the meaning of words in the common law of England and on common sense, too.

#242

Yet it is not at all misguided, since English Common Law and definitions such as Blackstone are indeed often very important and used by the SCOTUS (as well as lower level courts) to understand the definition of terms and concepts within not only the Constitution, but even statuary law when they are not spelled out within the laws themselves.

The point being that to claim that Blackstone has not, cannot, or should not, be used by the courts simply doesn’t match reality.

#243

Here’s another legal argument about what “natural-born” meant – http://blogs.gonzaga.edu/gulawreview/files/2011/01/Lohman1.pdf. I don’t think it’s as persuasive on what the common law was at the time the Constitution was adopted.

#244

That’s pretty much the crux of the problem. If the Framers thought the term “natural born” was important, why did they not define it? If anything, history shows that it wasn’t quite settled even back then.

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#245

That’s Ted Cruz, always causing trouble.

#246

They didn’t define it because everybody at the time knew what it meant (they had a common understanding of the term), so they felt no need to. If there was any doubt, ambiguity or uncertainty as to its meaning for them, they would have defined it to eliminate such. Since they didn’t, they obviously felt no need to.

Our problem with the term is that our world has changed from theirs: black men are now included in “all men are created equal” as are women, neither of which groups was intended at the writing of the Constitution , plus a globally mobile society(unfathomable in the late 18th century) means many children born to American parents on different soil. So we struggle because of those 200+ years that have passed and all of the societal changes that have happened in that time, which cause us to look at at these words differently.

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#247

I have to say that having read Madison, as the lady suggests, does give you a much better understanding of the term “natural-born citizen”. You have to remember that when the Constitution was being drafted, most of the people who were our leaders had been born in England, not the colonies, so under English law, they were Englishmen. But, they understood English law and they understood that the unique situation in which they found themselves at that time would change. So, the clause about eligibility was written to mean the following:

For the early years of the nation, a president had to have lived in the nation at least 14 years prior to taking office to insure that those who were writing the Constitution would be eligible, and that in the future, a person would have to be born on US soil, not just be the child of an American citizen wherever they were born outside of US territory. This is why Obama would be citizen of the US, and Cruz or McCain would have a problem.

Now Congress to cover McCain passed a special bill recognizing him as a US citizen because even though he would born on Panamanian soil, both his parents were US citizens attached to the military. Cruz does not have that luxury, and unless his mother filed to have him recognized as a citizen with the US State Department, then he is a Canadian, not a US citizen. If his mother renounced her citizenship prior to his birth, as some are saying might have happened, then he is most definitely not a US citizen under the Constitution. In fact, if he has failed to become a naturalized citizen due to those facts, he is then an illegal immigrant who entered this country under false terms.

Now wouldn’t that be a kick in the head for Ole Teddy Boy?

One has to wonder why the GOP seems to have such a problem finding candidates that do not have a question mark hanging over their heads about citizenship. First, McCain, then Romney, and now Cruz. What happened to all the candidates born on US soil in the GOP? Kind of makes me laugh, in an ironic way of course, that the party who is so against immigration seems to have it ranks riddled with those who might have citizenship issues, while the party that is all about helping immigrants reach the American dream never seems to have those problems, legally at least.

#248

“Everybody knew”? “Had a common understanding of the term”? I really don’t think that’s a very good definition.

But I wholeheartedly agree with the rest. Applying a 250 year old mindset to the 21st century is just stupid. Not surprisingly, that’s exactly what Ted Cruz’s legal philosophy is (excepting the question of “natural born citizen”, perhaps).

I think the Framers would have a good laugh if they saw all the agonizing over their choice of words. They would also find great irony in the fact that they were very progressive, ready to part with the past and forge a new world, but modern conservatives would rather be stuck in the 1700s than move on.

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#249

But if he’s not a US Citizen, how the heck did he become a US Senator?

#250

This is the damning point. If you’re a citizen, either you’re a natural born citizen or you are a naturalized citizen. There really isn’t any other category, so the question is whether Cruz is a natural born citizen or not a citizen at all. If the latter, then he has broken all sorts of laws about voting, travel, passport, identity, etc., etc. I don’t think anyone would say he’s a naturalized citizen, because he never went through that process. Folks, to retain any coherency in our laws, he has to be a natural born citizen or not a citizen.

That said, lawyers can make a muck of anything, and almost always do. It’s what they’re trained to do: to raise doubt, obfuscate, confuse, and twist meanings, if it helps their cause. That they are doing so here doesn’t mean it isn’t simple, it just means that some very creative legal minds are searching for an issue to hang on this situation. It’s just what they do.

#251

The UK did not force Canada to maintain its constitution as a UK statute. Canada did not come up with an amending formula. As Trudeau said, at the time, the UK Parliament could " hold its nose" but it had to pass the Canada Act when Trudeau cut the Gordian surrounding an amending formula.

Canada independence?

1922 Canada refuses the UK’s troops for a crisis in Turkey.
1926 Imperial Conference declares he Parliaments of the Dominions equals of the UK Parliament and no law of the UK Parliament would apply to a dominion without its consent.
1927 Office of Governor General of a Dominion no longer represents the British Crown, but is a personal representative of the monarch as King/Queen of that Dominion.
1931 Statute of Westminster codifies those changes. For Canada it goes into effect immediately.
1949 Canada can and does abolish appeals to the Judicial Committee of the Privy Council (the Supreme Court of the British Empire) as approved by the JCPC itself
1952 - First Canadian Governor General. (Vincent Massey). (Australia beat Canada to that punch in 1930 as the first dominion to have on of its own as GG (Sir Isaac Isaacs

Dominions renamed Realms.

Those Realms (there are 15 + UK) must approve any change in the succession to the throne. Most recently, this happened when the succession became gender neutral.

1982 Canada ACTS (older BNA Acts renamed). as well as the 1982 Act which contains the Charter.

Other Dominions had amending formulae.

#252

Remember, there is a wrinkle with his mother as well. She was a Canadian citizen at the time of Teddy’s birth. And Canadian oath of citizenship at the time required renouncing all previous allegiances. Teddy was intended as an anchor baby so that his father Rafael could remain in Canada. Teddy’s birth was not registered with the US consulate as required by law.

#253

I think the relevant contrast that the Founding Fathers were aiming for in the eligibility criterion for President was Natural Born Citizen vs. Foreign Born Citizen.

#254

Very nice analysis. Ted might not even meet the criterion for US citizen at birth much less the criterion for Natural Born Citizen.

#255

I’m not familiar with the category “foreign born citizen.” Did you just make it up?

#256

Speaking of rationalization:

So a further question arises: Are citizens by blood rights to be considered “naturalized,” as the title of the 1708 statute suggests? The 18th-century view was that “[t]he title of a Statute is not to be regarded in construing it, because it is no part thereof.”26 That’s because Parliament never voted on titles—just on the words of the statutes themselves. The titles were added later by printers.

Hence no stock should be put in the title—whether it’s the title of the 1708 statute or the similarly titled federal statute of 1790. Both referred to naturalization, but the common-law rule of disregarding titles applied to both.

Now, this is indeed probably the rule of interpretation although I have no idea, and I doubt Bryan A. Garner. who is the author of this piece, whether or not the Congress votes on the title but what he is trying to do is to avoid the idea that what the Congress thought it was doing as passing a rule for naturalization. The reason that this is a rather disingenuous piece of rationalization is that the power under which Congress was acting is as follows: Congress shall have the power …To establish an uniform Rule of Naturalization…

And so, while Parliaments did not vote on titles The United States of America did most definitely vote on its Constitution.

So if Congress is acting under this power it is naturalizing citizens by blood rights. And if citizens by blood rights require naturalizing, they were not natural born in the first place.

Garner bills himself as follows:

I’m a libertarian Republican—but I’m pretty apolitical. I’ve backed no presidential candidate in the current race. I’ve met Cruz only twice, but we haven’t seen each other or spoken in over two years. He didn’t ask for this opinion, nor have I communicated with him about it.

But you should note footnote 20: > See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 320–21 (2012)

#257

I’m not quite sure what your point is. It doesn’t seem to refute my thesis that, up until 1982, Canadians were considered subjects of the Crown. The Oath of Citizenship then, as now, requires that citizens swear fealty to the monarch and her heirs. Ms. McManamon’s argument rests on the fact that her research says that it applies to “Citizens of the Crown” which, it would seem Cruz qualifies for under her definition since he was board prior to 1982.

Raw Story has an interesting article about all this today:

One of the points this article raises is that “originalists” (like Cruz) have conflicting history to look back on. It also seemed to be more important that the FATHER of a child born outside the US must either be a citizen or have lived in the US. But even that is murky.

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