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Ted Cruz: A Probable Natural-Born Citizen of the American Republic

Senate Republicans Speak To The Press After Weekly Policy Meetings

In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States.  Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”

I write to note my disagreement with their certitude, but tentative agreement with their conclusion.

Let me begin with a personal disclaimer.  Senator Cruz was a teacher of mine in a small seminar at the University of Texas School of Law.  I like and admire him greatly.  Before he became famous, he even exchanged some emails with me.  A citizen of Texas, I voted for him in the 2010 Senate elections, both primary and general.  A Republican voter, I will probably not vote for him in the 2016 primaries, but will vote for him with great enthusiasm in the general election if he is the nominee.

But is he eligible for the presidency?  I think he probably is, but not for the reasons, and not with the certitude, offered by Mr. Clement and Professor Katyal.  Indeed, I think the evidence they rely on suggests his ineligibility.

They point primarily to statutory evidence.  In particular, they cite certain English statutes and Congress’s 1790 Naturalization Act, which affirmed that children born to subjects or citizens abroad were to be deemed natural-born subjects or citizens for all intents and purposes.

But the fact that these provisions are found in “naturalization” acts strongly indicates that such foreign-born persons were not truly “natural” but had to be naturalized by force of the statute.  That is to say, the statutory provisions seemed designed to make someone “natural” who was not otherwise natural. They resemble later adoption statutes that “deemed” the child’s new guardians to be his “parents” for all intents and purposes.

Further, in the 1790 American Act, there is no textual evidence suggesting a distinction between this provision and the other naturalization measures.  The provision for children born abroad appears to be part of one integrated rule of naturalization; it is found in the penultimate sentence of the statute’s sole paragraph.

But let us suppose that these provisions, despite forming seemingly integral parts of “naturalization” laws, were not actually “naturalization” measures. Still, one would seem at a loss to identify what power Congress was exercising.  Congress is given power to naturalize, not a power to declare who was truly “natural” and thus needs no naturalization.

Further, let us suppose these declarations were merely declaratory.  At the very least, the existence of these “declarations” indicates that there was at least some disagreement as to what “natural born” meant, both in Britain and the United States.  That is, in the eighteenth century, even in 1790, there was some ambiguity as to what “natural-born” meant.  If so, then the ambiguity probably attaches to the original understanding of the term, as used in the Constitution of 1787.  At the very least, it is unclear whether Cruz was indeed “natural born.”

The problem for Cruz multiplies when one reviews the British Nationality Act, which the authors cite expressly.  That act was apparently clarificatory of an older “naturalization” statute; the clarification specified that subjecthood belonged to foreign-born children of fathers who were subject.  Cruz’s father, however, was not a citizen; his mother was.  Consequently, Cruz would not have been a natural-born subject under the Act.

In sharp contrast, one finds seemingly no British or American statutes declaring which native born persons are indeed natural-born.  All authorities seemingly concurred, without controversy, that persons born on the soil of England or the United States were indeed native to the respective polities.  There was no ambiguity to resolve.  (Note of course, that in the nineteenth century, there was sharp disagreement as to whether some “natural-born” persons were merely subjects, and not “citizens”; no one in Dred Scott argued that native-born blacks were “aliens”).

The statutory evidence, on its face, then suggests one of two conclusions.  Either such persons were not truly “natural-born” and had to enjoy that status by legislative acts.  Or, less likely, such persons were merely possibly “natural-born,” so some legislative acts were deemed necessary to clarify their status as “natural born.”  If so, Cruz at best only possible qualifies as “natural-born” to the United States.

But let me suggest another way in which Cruz’s eligibility could be vindicated.  This way depends on recalling (1) that “natural-born” membership depends on the relationship between one’s birth and sovereignty, and (2) that, in a republic, the locus of sovereignty is in the bodies of the citizens themselves.

All authorities seemingly concurred that the offspring of the King, regardless of place of birth, were plainly the King’s “natural-born subjects.”  No statute was ever needed to make such persons “subjects.”  Indeed, as Blackstone added, even the King’s ambassadors, because of their representative capacity, likewise carried abroad, by extension, the movable bodily sovereignty of the King: “the children of the king’s embassadors born abroad were always held to be natural subjects.” Unlike children born abroad to ordinary subjects, these children required no parliamentary naturalization at all—they were always deemed “natural-born.”

In our republic, however, the citizens became the sovereign.  As Chief Justice John Jay wrote in Chisholm v. Georgia,  “at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country…; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.”  If so, then the citizens of the American Republic arguably carry with their bodies abroad this sovereignty just as the King and His ambassadors had.  Consequently, since 1776, any child born to a member of the sovereign citizenry of the United States is as much a “natural-born citizen” of our Republic as a child born to the sovereign King was the natural-born subject of the British monarchy.

Ted Cruz, then, is probably a natural-born citizen of the United States, not because he was a citizen “from birth.”  Rather, he is a natural-born citizen because at his birth, he was the offspring of one of the Queens or Kings that compose the American Sovereign.

Reader Discussion

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on March 17, 2015 at 10:12:10 am

Accepting this argument, must we not then end birthright citizenship, as the child is the progeny of neither a citizen nor one subject to the "jurisdiction thereof" (US)?

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gabe
on March 17, 2015 at 11:13:43 am

The King's sovereignty extended not merely to his body but also the territory over which he had sovereignty. The same is true of the sovereign people of America. Hence, it would be a change in our Constitution--both the 14th Amendment and the underlying common-law tradition, to assert that the persons born subject to the territorial dominion of the sovereign people, do not owe allegiance to the people, and in a republic, thus become ispo facto not merely subjects but citizens.

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David Upham
on March 17, 2015 at 11:52:57 am

But maybe that change would be just and prudent. I don't know.

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David Upham
on March 17, 2015 at 12:14:31 pm

David:

If I am understanding your response correctly, you are asserting that someone born within the sovereign jurisdiction of the King (or the people) are by definition subject to that people's sovereignty?
In a sense this is both correct and prudent; it is to be expected that people living within a certain territory should be subject to the laws of that territory - nothing controversial here.
However, if by subject, in this case, you mean that that person is also entitled to the rights and privileges of citizenship pertaining in that territory, then I think this is arguable, at best.

Even under the British custom, there was marked distinctions between a subject and a citizen. "As John Eastman, former Dean of the Chapman School of Law, has said, many do not seem to understand “the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.” The King exercised significant control over those with the status of *subjects* in such manner that would not be accepted of, or by a citizen. subjects could be forcibly removed from one are of the kingdom to another, could be monitored, confined, etc under certain conditions. Thus, the *subject* may be said to have only territorial jurisdiction to which he was subject. Absent any avowed profession of allegiance, the subject was, quite frankly ,"subject" to the King. (There is some evidence that the early Republic in US also employed such practices). I think this shows that the subject was never seen, or intended to be viewed, as possessing the *sovereignty* of the people (citizens).

Clearly, mere physical presence in another sovereignty does not bestow upon the *subject* any of the rights of citizenship. Even if one considers that the phrase on jurisdiction in the 14th Amendment refers to recent secessionists, this would only further strengthen the case that "allegiance" and willingness to subject oneself to the laws of the sovereign are paramount when consider who is to be deemed, and endowed with the benefits of, citizenship.
Can one who is here against the laws of the sovereign, albeit via his parentage, be deemed subject to the jurisdiction of. In fact, if the parent is a non-citizen, even if the parent avows allegiance, how can it be said that the child should gain what a conscious agent could not?

Then again, perhaps, I am misreading your response.

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gabe
on March 17, 2015 at 20:26:41 pm

Good discussion professor. This is a topic I've been following since about 2008. My take on it is a little simpler, I guess.

The question, I think, is whether someone has to go through some process to become a natural citizen. Naturalized citizens have to go through a naturalization process. Did Ted Cruz? Not likely.

Also important is the issue of whether the individual has proven their naturalness. The Constitution does not provide that persons who's naturalization is not proven may be President. The person must be provably natural.

More important though is the suitability of the candidate. Does it really make a difference whether someone was born over this patch of dirt instead of that patch? You'll have problems convincing me that the location of some dirt matters much, if any, to the fealty of a President.

I'm more concerned with obligations. Does the candidate have obligations to other nations? From obligation comes allegiance. For example, did a foreign leader pay for a candidate's college degree. If that were to happen you might see a US President bowing down to a foreign king. Not a good thing, that. Friendship with foreigners is one thing, but obligations are another.

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Scott Amorian
on March 17, 2015 at 21:42:04 pm

https://naturalborncitizen.wordpress.com/2012/01/27/the-dirty-little-secret-of-the-natural-born-citizen-clause-revealed/

The Dirty “little” Secret Of The Natural Born Citizen Clause Revealed.

I have emphasized the word “little” because the truth of the law on this issue is very simple, folks. So simple that the mystery is deciphered by application of one of the most clear, concise and undeniable rules of law; the code of statutory construction governs, and therefore, “natural born Citizen” must require something more than being born in the United States.

Let me put it to you in appropriately simple language:

Clause A = “Only a natural born Citizen may be President.”

Clause B = “Anyone born in the United States is a Citizen.”

(While these two clauses reflect Article 2, Section 1, and the 14th Amendment, I shall refer to them as “Clause A” and “Clause B” for now.)

The code of statutory construction is learned by every student in law school, and every practicing attorney has confronted it. Every judge is required to apply the rule equally to all statutes, and the Constitution. There is no wiggle room at all. The rule states that when a court examines two clauses, unless Congress has made it clear that one clause repeals the other, the court must observe a separate legal effect for each. More specifically, regardless of the chronology of enactment, the general clause can never govern the specific.

Clause B is a general rule of citizenship, which states that all persons born in the country are members of the nation.

Clause A is a specific clause that says only those members of the nation who are “natural born” may be President.

According to the rule of statutory construction, the court must determine that Clause A requires something more than Clause B.

It’s truly that simple. This is not some crazy conspiracy theory. It’s not controversial. This is not rocket science. Every single attorney reading this right now knows, beyond any shadow of a doubt, that I have accurately explained the rule of statutory construction to you. Any attorney who denies this rule, is lying. The rule cannot be denied. And its simplicity cannot be ignored.

Now let’s see what the United States Supreme Court has to say about the rule:

“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers v. United States, 185 U.S. 83, 87 -89 (1902).

The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible . . . The intention of the legislature to repeal `must be clear and manifest.’ ” United States v. Borden Co., 308 U.S. 188, 198 (1939).” Morton v. Mancari, 417 U.S. 535, 550-551 (1974).

This is what I mean by no wiggle room – “The courts are not at liberty to pick and choose among congressional enactments…” Any court construing Clause A is not at liberty to assume that Congress intended to put the words “natural born” into Clause B. The general does not govern the specific, and the rule requires the court to “give effect to both if possible”.

Is it possible to give separate effect to both Clause A and Clause B?

Yes. The Constitution tells us that any Citizen can be a Senator, or Representative, but that to be President one must be a “natural born Citizen”. The Constitution specifically assigns different civic statuses to “Citizens” and “natural born Citizens”. Therefore, not only is it possible to give separate effect to both Clause A and Clause B, it is absolutely required by law, and no court has the ability to circumvent the rule.

Had the original framers intended for any “born Citizen” to be eligible to the office of President, they would not have included the word “natural” in the clause. Additionally, had the framers of the 14th Amendment intended to declare that every person born in the country was a “natural born Citizen”, then the 14th Amendment would contain clear and manifest language to that effect. But it doesn’t. Therefore, each clause must be given separate force and effect.

Deputy Chief Judge Malihi explained the rule of statutory construction in his denial of candidate Obama’s Motion to Dismiss, wherein his opinion of the Court stated:

“Statutory provisions must be read as they are written, and this Court finds that the cases cited by Defendant are not controlling. When the Court construes a constitutional or statutory provision, the ‘first step . . . is to examine the plain statutory language.’ Morrison v. Claborn, 294 Ga. App. 508, 512 (2008). ‘Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.’ Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (2003) (citations and quotation marks omitted). Because there is no other ‘natural and reasonable construction’ of the statutory language, this Court is ‘not authorized either to read into or to read out that which would add to or change its meaning.‘ Blum v. Schrader, 281 Ga. 238, 240 (2006) (quotation marks omitted).” Order On Motion To Dismiss, Deputy Chief Judge Malihi, Jan. 3, 2012, pg. 3. (Emphasis added.)

Therefore, the term “natural born” must be considered as requiring something more than simple birth in the country. And Judge Malihi states, quite clearly, in his ruling above, that the Court “is not authorized to read into or to read out that which would add to or change its meaning.” The rule is the same for election statutes in Georgia as it is for the Constitution of the United States.

The rule of statutory construction, with regard to the Constitution, was best stated by Chief Justice Marshall in Marbury v. Madison, 5 U.S. 137 (1803):

“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” Id. 174. (Emphasis added.)

If the 14th Amendment was held to declare that all persons born in the country, and subject to the jurisdiction thereof, were natural-born citizens, then the “natural born Citizen” clause would be rendered inoperative. It would be superfluous. And its specific provision would, therefore, be governed by the general provision of the 14th Amendment. The United States Supreme Court has determined that it is inadmissible to even make that argument.

Any genuine construction of the “natural born Citizen” clause must begin from the starting point that it requires something more than citizenship by virtue of being born on U.S. soil. Minor v. Happersett, 88 U.S. 162 (1874), tells you exactly what that something is; citizen parents.

Leo Donofrio, Esq.

[For a more detailed analysis of this issue, please see my Amicus Brief entered in the Georgia POTUS eligibility cases.]

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Linda Starr
on March 18, 2015 at 02:51:57 am

Ted Cruz is NOT constitutionally eligible to be Pres and CinC. The Dem politically active lawyers are joining with the Repub politically active lawyers to weaken the national security clause "natural born Citizen" in the presidential eligibility clause in Article II of our U.S. Constitution. The Repubs wish to run the candidate of their choice, politically attractive candidates such as Rubio, Jindal, and Cruz, constitution be damned. And the Dems will back the Repubs in doing this to give cover to Obama who was never eligible since he was not a "natural born Citizen" since he like Rubio, Jindal, and Cruz was born to a non-U.S. Citizen foreign national father. A "natural born Citizen" is one born in our country to two U.S. Citizen parents. See section 212 of this legal treatise by Vattel which was used by our founders and framers: http://lonang.com/library/reference/vattel-law-of-nations/vatt-119/ A basic "Citizen" at birth is not identically the same as a "natural born Citizen" at birth. Adjectives mean something. The person who would be the Commander in Chief of our military and President per the Constitution must be a "natural born Citizen" at birth, not simply a "Citizen" at birth. Read Article II Section I Clause 5. It contains both the term "Citizen" and "natural born Citizen". A man-made law making someone a Citizen at birth (naturalized at birth by force of law) using the naturalization powers of Congress granted in the Constitution does not make them a natural born Citizen, which status is only granted by the laws of nature under Natural Law. For more on natural law see: http://lonang.com/library/reference/vattel-law-of-nations/vatt-119/ For more on naturalization at birth laws and decisions by the Supreme Court, see the 1971 U.S. Supreme Court Bellei case re naturalization at birth via statutory laws. 401 U.S. 815 (1971): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=401&invol=815 Again, adjectives mean something. See Vattel's treatise Principles of Natural Law for more on fundamental natural law. Read to learn more: http://www.scribd.com/doc/44814496/Of-Trees-and-Plants-and-Basic-Logic-Citizen-at-Birth-NOT-Identical-to-Natural-Born-Citizen-by-CDR-Kerchner-Ret and http://www.scribd.com/doc/185258103/Three-Legged-Stool-Test-for-Natural-Born-Citizen-to-Constitutional-Standards CDR Kerchner (Ret) ProtectOurLiberty.org

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cfkerchner
on March 18, 2015 at 09:15:21 am

[…] Ted Cruz: A Probable Natural-Born Citizen of the American Republic […]

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No to Common Core, Yes to State Competition in Education - Freedom's Floodgates
on March 18, 2015 at 11:11:44 am

OK, good points, especially re: distinction between "citizen" and *natural born citizen*.
However, I am still troubled by the assertion that many make regarding birthright citizenship. To provide a blanket grant of citizenship, simply be virtue of birth in a territory, would seem to make inoperative the "qualifying clause "..and subject to the jurisdiction thereof.." If as you say, (I agree BTW) that there were no intended superfluous clauses in the Constitution, then what are we to make of this *jurisdiction* clause.

BinLaden's wife having given birth to a child while in US territory? - Citizen?

Italian Ambassadors wife having done the same? Citizen?

With respect to the latter - clearly NO, or so one is told.

But how about Madame Bin Laden? - right now, it would seem arguable based upon current practice. Yet, in what sense may it be supposed that she (and the child) is subject to the jurisdiction of the US?
So what precisely does this mean.

Was not this clause originally directed at former secessionists and would this not indicate that something other than birth is required as well for basic citizenship? Loyalty, allegiance perhaps? Of course, a newborn is incapable of such a profession of allegiance but it must come through the "blood" - so how is one who is not a citizen capable of transferring to another that which he / she does not themselves possess?

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gabe
on March 18, 2015 at 15:58:30 pm

Linda or Linda's lawyer or whoever you are, this horse died years ago, and here you are still flogging it. Why?

I agreed with the general goal of your argument when you made it five or six years ago, but writings like this leave me wondering what you are trying to accomplish.

Your arguments are not good. Let's look at Minor v Happersett for a moment. Here is the key discussion alluded to:

"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 [88 U.S. 162, 168] 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 doubted concept is that a child born of Mexican parents on US soil does not have American citizenship at birth. I think that doubt has been resolved since then. Don't you?

I see nothing in Marshall's discussion above or elsewhere in the ruling that fully addresses the question of natural born citizenship. Marshall ends the above section by saying explicitly that the court did not resolve that particular issue in the ruling. He says that in the case of children born to US citizens, the children are US citizens also, and that fact is enough for the Court to rule on in the case. So I find your key reference flawed and inadequate. If I missed a key point in the ruling, please clarify it for me because I am interested in learning more.

One of the problems being addressed is the problem of vetting of the President. The Framers intended for the electoral college to vet the President. The college was supposed to ask the candidates for reasonable proof of natural born citizenship, such as a credible copy of a birth certificate and a politically neutral review of persons with credible claims that the person was born elsewhere in such a way that they are not a US citizen. But the electoral college does not do that kind of thing. Instead it is an extension of the two political parties. If you really want to help America, apply your legal skills there and move forward. How would you go about introducing politically neutral refereeing of the American political process?

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Scott Amorian
on March 18, 2015 at 16:25:19 pm

Gabe,

You're not misinterpreting what I said. In a republic, we don't have subjects, certainly not in the post-slavery, multiracial republic.

It may not be logical that persons unlawfully present can give birth, and the child becomes ipso facto a citizen, but I think that's the rule of the common law, which was merely restated, not created, by the Citizenship Clause.

So, for instance, roughly 50,000 persons were imported into the United States in violation of the anti-slave-trade laws of the United States. Their children, by birth on the soil here, became citizens, as declared by the Fourteenth.

David

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David Upham
on March 18, 2015 at 16:28:26 pm

Does it make a difference where they are born? We might also ask, does it make sense who the sperm donor is or even who the mere gestational mother was?

All of these facts about genetic lineage or place of birth are quite difficult. I think it's a decent rule, but it's not without problems. The alternatives is a naked rule that says, no one can be President unless they can prove (how? to whom?) that they are capable. The Constitution, rightly in my opinion, imposes easily-administered age, residency, and durational citizenship requirements for office. These are grossly imperfect, but they serve some function, and are somewhat reasonable.

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David Upham
on March 18, 2015 at 16:53:46 pm

Scott:

"The doubted concept is that a child born of Mexican parents on US soil does not have American citizenship at birth. I think that doubt has been resolved since then. Don’t you?"

I actually don't! to my mind, this has never been satisfactorily resolved. During the debates over ratification of the 14th Amendment (and during discussion in the Congress) this very issue was debated (albeit using the Chinese people at the time). No satisfactory resolution was to be had. There still remains the issue of the meaning and effect of the "jurisdiction" clause. And while many *act* as if citizenship is bestowed by birth in a territory, I don't know of any constitutional underpinning for it. Clearly, in the early Republic, there was a different conception of citizens and subjects and as I mentioned earlier the record indicates that not only were aliens (to use the term of the day) not considered citizens but they were subject to all manner of inconvenience, the likes of which would never be considered for a citizen, natural born or otherwise.

Some of the Court cases which provide support to birthright citizenship seem to avoid the issue of jurisdiction to the extent that they cite common law which indicates that one born in a territory and under the " jurisdiction and allegiance" of same are entitled to citizenship.
My question is: To whom or what does one owe allegiance when one is an uninvited *guest*? and in many cases continues to profess allegiance to one's native land.
I will say this: There is a difference between an immigrant (such as my own grandfather) who comes to this country, lawfully, immediately professes allegiance to the US, begins the process of naturalization (ultimately successful), and then begets children who are (and should be considered) citizens and those who come here illegally, do not foreswear allegiance to their native land and have children to "anchor" their own status here in the US.

Also, I am not certain of the due diligence of the Electoral College as you say. Documentation and even birth certificates were a little scarce at the time. Moreover, 8 of the first 9 Presidents were not "natural born" citizens but rather were originally subjects of Britain. A provision was made for those persons who were citizens at the time of the adoption of the US Constitution which enabled Washington, etc to become President. Thus, I don't (or did not) see the Electoral College performing this function. But maybe they did - you could be correct on this as you are on the assertion that "natural born" has not adequately been defined.

Like you, I should like to see some definitive answer(s) to these issues.

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gabe
on March 18, 2015 at 18:09:41 pm

David:

As always, thanks for the response. Don't want to beat a dead horse here, but:

Doing some quick checking I find that common law, while supportive of birthright citizenship, was also said to have (and been cited by some courts as requiring) a component of allegiance associated with the bestowing of citizenship by birth. So I am not certain what to make of this. In my mind, allegiance would be a predicate for "subject to the jurisdiction."

As for the 14th Amendment, while Bingham proposed / argued for birthright citizenship, there was some measure of debate as to whether this was a) intended and b) proper. It was left unresolved (at least in my reading of the discussions).

Question: Is there any case that resolves the meaning of "subject to the jurisdiction thereof"?

BTW: If you were the one who recommended the essay "On Misreading John Bingham", let me thank you for the link. Great essay.

take care
gabe

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gabe
on March 18, 2015 at 21:36:18 pm

You make some good points on theory. Unfortunately whatever we may think about whether place of birth defines citizenship, the fact is that the US grants citizenship to people based on place of birth. Fiat or proper law, that's how things work and that what we must work with.

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Scott Amorian
on March 18, 2015 at 21:39:20 pm

Argh! I think this is just political spam.

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Scott Amorian
on March 18, 2015 at 23:34:15 pm

I'm an engineer by training, trade and temperament. Engineers like to fix things that are broken, and make things that are new. When I look at our system of government I look at it in terms of what to fix and how to fix it and how can it be improved.

So I have to ask, what specifically is broken and what specifically can be improved? Is the current system not working as desired? What is the expectation and how are things working instead?

The natural-born criteria was intended to prevent a specific type of foreign intrigue. It was meant to lessen the ability of foreign nations to interfere with our government by providing candidates loyal to themselves. I suppose it does that to some degree, but what can be done to further reduce foreign interference? Do we even need to do that?

I would suggest that other avenues of foreign interference are more problematic. Foreign nations are able to work around laws intended to prevent large campaign donations. Those donations are bribes. That is a problem.

Who paid for the current President's education? I would hate to find out that a foreign nation financed his secretive education. That type of thing is a problem.

... food for thought.

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Scott Amorian
on March 19, 2015 at 02:05:26 am

Excellent info Mr. Kerchner.

Attorney Leo Donofrio also provided a wealth of information on this subject throughout his entire Natural Born Citizen blog (from which I posted above) but sadly (for the rest of us) decided to relinquish his license and change careers in 2012.

Also, for anyone interested, Attorney Mario Puzo has a lot of very new articles addressing this issue and that of Ted Cruz on his blog below. Not being a lawyer, I defer to him as well:
http://puzo1.blogspot.com/

As to who vets the candidates, this is still the best explanation of how Obama ended up on the ballot

Excerpt: Ultimately, the DPH's rejection of Obama was due to a refusal by Obama to make available the original documented evidence confirming his eligibility. However, this justifiable lack of certification by the DPH was followed by a covert attempt by the Democratic National Committee, chaired by Nancy Pelosi, to artificially proclaim Obama eligible in Hawaii by submitting two separate, sworn Official Certifications of Nomination (OCON) for Obama, each containing different legal language. Both versions of the OCON were sent to the Hawaiian Office of Elections while only one version was submitted to other states' Election authorities. The DNC's fraudulent OCON was an obvious, desperate attempt to control damage and prevent Obama from being disqualified from the Hawaiian ballot and prevent public awareness of the DPH's refusal to certify Obama's eligibility.

It's long, but very interesting:
http://thedailypen.blogspot.com/2011/01/o-con-had-legal-help-from-non-partisan.html

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Linda Starr
on March 26, 2015 at 16:45:31 pm

Ted Cruz is a "citizen" by statute.

"natural born Citizens" are not.

Had his mother not meet the letter of the law at that time, or had the law been written with different age/residency requirements, Ted Cruz having been born in a foreign country with foreign citizenship, would have had to naturalize in order to become a U.S. citizen.

Congress, through its naturalization powers, cannot (thank goodness) write law determining who may be a "natural born Citizen."

Congressman John Bingham, the father of the14th Amendment on citizenship, told the country on three occasions in the people's house who a "natural Born Citizen" is.

Neither Obama, nor Cruz are one due primarily to divided allegiance owed (Kawakita v. United States) at birth. They defy the reason for Jay's hint to Washington, and the framers and founds reason for adopting it.

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rxsid
on April 03, 2015 at 10:03:20 am

Subject?

This guy might have a legal background but since when do we define ourselves as subjects.

Natural Born is defined over and over through out the 19th century. Hugo Black cited the legislative history in his article in the mid 60's by reviewing the oral arguments in Congress to pass the 14th amendment.

Specious?

A justice of the SC is specious?

https://naturalborncitizen.wordpress.com/2011/03/29/justice-hugo-black-in-duncan-v-louisiana-indicates-obama-would-not-be-eligible-ineligibility-echoed-by-former-attorney-general-jeremiah-black/

The Author of the 14th amendment was John Bingham as Black discovered, he argued for citizenship rights
and specifically argued that it have no bearing on Art 2 which requires a President be Natural born.

All of the babble about applying Natural to Citizenship is bunk.

The language was derived from Vattel in his book Laws of Nations.

Vattel was taught as constitutional law courses through out the 19th century.

The idea that the 14th amendment validates Cruz, Obama or Rubio is only self serving for those who want to change the meaning for their own narrow view point of the constitutional requirement. It is not about that.

If we want to redefine qualifications to mean other than Vattel's definition of born to two citizen parents, then we would have to get into the debate of if a President could have their judgement skewed by aligning with interests they where brought up to identify with. This charade of watching a single parent citizen be commander and chief the last few years is proof enough of the dangers of usurpers. So any convention to change the meaning would not be ver compelling once you examine the threat of a cloaked usurper gaining ultimate power.

A subject can never be a king, and in this country no one wanted to identify with limited devine rights to power. Art 2 is the protection required to prevent a manchurian.

This review blurring the simple meaning is specious.

Vattel's Book I, Chapter 19, section 212

“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.

If not Vattel, then where did they arrive at this term. Many of those who ridicule us like to quote Blackstone as authoritative that the United States adopted English Common Law. They like to state that Blackstone’s natural born subject is equivalent of a natural born citizen. There is no doubt that the Founding Father’s were influenced from Blackstone’s Commentary. However, the Framers of the Constitution recognized that it was Blackstone, who argued that the Parliament and King could change the constitution at will. Blackstone was increasingly recognized by the Americans as a proponent of arbitrary power. In fact, the framers rejected the notion that the United States was under English Common Law, “The common law of England is not the common law of these States.” George Mason one of Virginia’s delegates to the Constitutional Convention.

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Paul
on April 08, 2015 at 21:02:04 pm

How can Ted Cruz possibly be a NATURAL BORN CITIZEN? It's impossible. He is only a statutory American citizen under the Citizenship laws in effect at the time of his birth in 1970. Consider this:

FACT: Prior to 1934 there was no way that Cruz could claim citizenship through his mother. NO BLEEPIN WAY. The law of the land in 1934 was that Citizenship for a foreign born child could only be passed by the FATHER's US citizenship - Not the mother! That is PROOF positive that it took subsequent laws by Congress to make Cruz eligible to acquire American citizenship (notwithstanding his dual Canadian citizenship) through his mother at the time of his birth IN CANADA. That is PROOF that the nationality laws have evolved since the Constitution was written...clearly Cruz can only claim citizenship by CONGRESSIONAL ACTION/STATUTE ONLY...thus obviously he is NOT NATURAL BORN. It's a no-brainer. If Cruz thinks he is constitutionally eligible under Article 2 then he would have been eligible at the time the Constitution was written and clearly he was not. Furthermore if he was a NBC he would have been qualified at any time in the history of the American republic....even if he was born prior to 1934. Clearly he is not!

AND consider this:

The Immigration and Nationality Technical Corrections Act of 1994!!!!!!!!!!!!! (or H. R. 783) was an act by the United States Congress "to amend title III of the Immigration and Nationality Act to make changes in the laws relating to nationality and naturalization."[3] The act amended the Immigration and Nationality Act by allowing to provide for the acquisition of United States citizenship from either parent for persons born abroad to parents, only one of whom is a United States citizen.[1]

The act was signed into law by President Bill Clinton, who said in his signing statement that act would correct the injustice towards persons born outside of the United States, and only one of whose parents was a United States citizen. Prior to the act, such persons could only acquire citizenship if that parent was the father.[4] The act amended this condition to allow acquisition of US citizenship when either of the parents was a US citizen.

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Gary
on December 03, 2015 at 21:43:04 pm

I urge everyone to read Mario Apuzzo's scholarly reply to the Harvard Law Review's disturbingly sloppy, faulty "analysis" of Curz's eligibility. It's well-worth reading, and we do a great disservice to scholarship by not carefully reviewing Apuzzo's reply.

http://puzo1.blogspot.com

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Jim Delaney
on December 04, 2015 at 14:02:41 pm
Image of Linda Starr
Linda Starr
on December 04, 2015 at 15:20:27 pm

LInda,
Great cites, especially the one on "statutory construction". Had read the other articles by Mr. Apuzzo. Thank you!

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Jim Delaney
on January 06, 2016 at 17:09:54 pm

I'm more confident now in my conclusion once I've found how emphatically I've found that the offspring of the King were indeed natural-born subjects--all agreed on this. My FB post:

"Why Ted Cruz is, according to the original understanding, a "natural-born citizen of the United States." At common law, it was at least ambiguous whether the child of a "subject" born abroad was a natural-born subject, and it appears that for the most part a "naturalization" statute was necessary to make such persons subjects. But the common law was unanimous and emphatic that the offspring of the king born abroad were born into allegiance to the King just as equally as someone born in England--the children of a King or Queen then, wherever born were natural-born subjects.

Now "[a]t the Revolution," as Chief Justice John Jay explained, the royal "sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty."

This means of course that every citizen of the United States is effectively a co-regent. Ted Cruz's mother was a citizen. She was a queen. As such, Ted Cruz was a natural-born citizen of the United States."

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Image of David Upham
David Upham
on January 06, 2016 at 17:16:55 pm

" It was also in natural law and the law of nations that they found their definitions of citizens and natural born citizens. "

Puzo's mistaken here--massively. They looked to the common law. I can't think of anyone in the Founding era that adopted the law of nations or public law as the basis for defining who gets, at birth, the designation "citizen." And at common law, it was ius solis.

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David Upham
on January 06, 2016 at 20:06:13 pm

"Cruz was born in Canada, presumably to a U.S. citizen mother and a non-U.S. citizen father. He can be a citizen of the United States at birth, but only by virtue of a naturalization Act of Congress (section 301(a)(7) of the Immigration and Nationality Act of 1952). He is not and cannot be a natural born citizen under the common law because, while he was born to a U.S. citizen mother, he was not born in the United States and he was born to a non-U.S. citizen father.

Rubio and Jindal were born in the United States to two non-U.S. citizen parents. They are both citizens of the United States at birth, but only by virtue of the Fourteenth Amendment. They are not and cannot be natural born citizens under the common law because, while they were born in the United States, they were born to two non-U.S. citizen parents."

http://puzo1.blogspot.com/2015/11/a-citizen-is-one-thing-but-natural-born.html

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Linda Starr
on January 06, 2016 at 22:54:59 pm

He writes this, but he's mistaken about the common law. See Wong Kim Ark--both majority AND dissent confirm that the common law rule was ius solis, but the dissent insists that the common-law rule was replaced with Vattel's understanding either at the Founding or at least somewhat later.

The majority is right, however even there. The common law--with ius solis--as elaborated by Blackstone and Coke, was the dominant mode of understanding "natural-born" citizenship. https://scholar.google.com/scholar_case?case=3381955771263111765&q=wong+kim+ark+%22natural-born%22&hl=en&as_sdt=6,44

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David Upham
on January 07, 2016 at 13:21:52 pm

So, if the child, or the parents, are not subject to the jurisdiction of the US, how then can they be arrested and deported? If they are not subject to the jurisdiction, then no US court would have the authority to issue an arrest warrant, or a deportation order.

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Image of JeffDG
JeffDG
on January 08, 2016 at 10:15:05 am

[…] David Upham reached the same conclusion, albeit tentatively, for the same reason back in March. In Ted Cruz: A Probable Natural-Born Citizen of the American Republic he concludes: All authorities seemingly concurred that the offspring of the King, regardless of […]

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Image of McCain says concerns over Cruz citizenship legitimate
McCain says concerns over Cruz citizenship legitimate
on February 02, 2016 at 16:45:12 pm

Rafael E. "Ted" Cruz, missed being an United States citizen at birth by over 171 years. He was born in a location in Calgary, Alberta, Canada on December 22, 1970 on the watershed of the Bow River. Said location has not been part of United States limits since January 30, 1819.

Between December 3, 1818 until January 30, 1819, the hospital location of Rafael E. "Ted" Cruz was in the organized and incorporated Territory of Michigan.

It was on February 1, 1806 that Lt. Zebulon M. Pike, U.S. Army, determined during a exploration at Leech Lake
that there was a "gap" between the Mississippi and the boundary line running Westward from the Lake of the Woods. Therefore, the Northern limit of the Territory of Michigan followed the limits of the 1609 Virginia Charter
Westward until the boundary was set on January 30, 1819.to the South of the watersheds of both the Bow and
Elbow Rivers.

Lets not forget that R. E. Cruz on December 22, 1970 had dual citizenship, namely Cuban and Spanish. Both his parents were born in Spain. That make Ted Cruz a subject of the King Juan Carlos of Spain under a law
passed in 2007. Both of Ted Cruz children are Citizens of Canada.

I am also informed that Ted Cruz has very little legal roots in Texas. He did not become naturalized in Texas under the term of Texas Constitution of 1876, viz., Article 16, Section 18. which requires "emigrates" to the
State of Texas to become a citizen of that State after "six month" of residence in the state to "make oath before
some competent authority". Since Ted Cruz was a naturalized citizen from a location beyond the limits of
United States he was not a citizen of any state within the United States.

Mark Seidenberg, Chairman, American Independent Party of California

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Image of Mark Seidenberg
Mark Seidenberg
on February 02, 2016 at 16:54:57 pm

I made a typo. It was R. B. Cruz who had Spanish parents at birth which made him a dual Cuban and Spanish
Citizen. Therefore, R. E. "Ted" Cruz is also a Spanish Citizen under a Spanish Law that was passed in 2007.

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Image of Mark Seidenberg
Mark Seidenberg
on February 04, 2016 at 01:52:22 am

Excerpt:
Unfortunately, there is no evidence to suggest that the parent or parents of Ted Cruz ever filed a CRBA form with the U.S. Government in or around 1970, which is why Ted Cruz released a copy of his Canadian citizenship records and not any U.S. citizenship records. At present, all FOIA (Freedom of Information Act) requests filed in search of any U.S. citizenship documents to confirm the true official U.S. citizenship status of Ted Cruz have been denied access. All citizenship records for Ted Cruz are sealed unless and until Ted Cruz agrees to allow any such records to be released by either U.S. or Canadian agencies.

As a result, there remains no authentic evidence to support the claims that Ted Cruz is either a “natural born” or “naturalized” citizen of the United States.

On the basis of all available evidence today, Ted Cruz is in fact holding a seat in the U.S. Senate illegally, with no documented proof of legal U.S. citizenship whatsoever, and proof of Canadian citizenship between the years of birth in 1970 and May 2014.

It is unfortunate that a person so many have placed their political faith in has proven willing to defraud his supporters for both votes and millions in campaign donations. But it is better we know now, than after he wins the GOP nomination only to be destroyed by Democrats later, using the same facts and evidence presented here.

What will the people do with this knowledge? Are they really motivated by restoration of Constitutional compliance, or mere political expediency?

Read the whole article:
http://www.newswithviews.com/JBWilliams/williams317.htm

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Image of Linda Starr
Linda Starr
on March 17, 2016 at 16:28:20 pm

RAFAEL EDWARD (TED) CRUZ: Born in Canada in 1970, his parents were then a Cuban citizen father, and an American citizen mother. Canada recognizes that being born in Canada make one a Canadian citizen by birth in that country. Rafael (Ted) Cruz also has, (or had), dual Canadian citizenship with Cuba, until May 14, 2014 when he formally reported he had renounce his Canadian citizenship, since his father was a Cuban citizen at the time of Rafael’s birth he still retains his Cuban citizenship.

Citizenship follows that of the father’s, not the mother’s, and his Canadian citizenship was a gift from Canada for being born there.

So how do these events of Rafael's birth, in Canada, make him a Natural Born US citizen by birth? It doesn’t look that way. Good question though.

As we looking further into that question and do the research and consider the following we see he had the opportunity to become a US citizen upon his birth, but not an NBC, had his mother followed required US protocol below:

A child born abroad to a U.S. citizen parent or parents may acquire U.S. citizenship at birth if certain ‘statutory’ requirements are met.

“The child’s parents should contact the nearest U.S. Embassy or Consulate to apply for a Consular Report of Birth Abroad of a Citizen of the United States of America (CRBA) to document that the child is a U.S. citizen. If the U.S. embassy or consulate determines that the child acquired U.S. citizenship at birth, an Embassy or Consulate officer will approve the CRBA application and the US Department of State will issue a CRBA also called a Form FS-240, in the child’s name.”

(The above is what we were taught in the US military before were stationed or traveled overseas)

The question then is did Rafael’s mother take the necessary steps to do this?

If so, where are the documents verifying this took place? They should still be on file at the US State Department since Form FS-240 was issued by them.

Also was this accomplished, if required?

Since Rafael returned to the USA at age 4 who’s passport did he travel back to the US on?

Or did his parents simply schlep him across the Canadian border?

In view of this, is Rafael really a US citizen?

I addition, a person born abroad who acquired U.S. citizenship at birth but who is over the age of 18 (and so not eligible for a CRBA) may wish to apply for a Certificate of Citizenship to document acquisition pursuant to 8 U.S.C. 1452.

Visit USCIS.gov for further information.

Did Rafael do this, since his CRBA, if he had one, expired at age 18?

So Rafael (Ted)Cruz fails to meet the requirements for POTUS based on his birth right.

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Image of Jim Buzzell
Jim Buzzell
on March 17, 2016 at 21:07:18 pm

Clement's less-than-scholarly argument was thoroughly discredited by attorney Mario Apuzzo. Check it out on Mario's blog. There's scholarly analysis, then there's tendentious analysis.

And so it goes....

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jim delaney
on April 01, 2016 at 17:20:36 pm

Scrolling through the conversation here, very little has been said about whether BOTH parents' citizenship was/is required at the (president's) birth.

Do not the Supreme Court cases dealing with citizenship issues (Minor v., Wong Kim, etc) make clear the distinction between "natural born" and "naturalized". The SCOTUS opinions have not been overturned to my knowledge. And don't those cases make clear "PARENTS" vs. "a parent", or "one parent"? Why would it matter for both parents to be citizens? Can someone answer this?

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Kay

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