Thoughts Aloud

I was really surprised at the amount of time spent on the issue of Ted Cruz’ citizenship in the debate last night. It was taken seriously, and not laughed off as ridiculous by anyone, even Cruz. Yes, he was prepared for the question and had some good one-liners; but his actual defense seemed to be a continuation of his cavalier attitude. He regards it as virtually incontestable settled law, and only being brought up because his poll numbers were rising. I did not get that impression at all.

Trump repeatedly referenced his Harvard Law professor, Laurence Tribe. It happens that he recently penned a Boston Globe editorial, calling Cruz out for his hypocrisy, while declaring him Constitutionally ineligible for POTUS under his own ‘originalist’ position on Constitutional interpretation:

There’s more than meets the eye in the ongoing dustup over whether Ted Cruz is eligible to serve as president, which under the Constitution comes down to whether he’s a “natural born citizen” despite his 1970 Canadian birth. Senator Cruz contends his eligibility is “settled” by naturalization laws Congress enacted long ago. But those laws didn’t address, much less resolve, the matter of presidential eligibility, and no Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a “natural born citizen” is completely unsettled, as the most careful scholarship on the question has concluded. Needless to say, Cruz would never take Donald Trump’s advice to ask a court whether the Cruz definition is correct, because that would in effect confess doubt where Cruz claims there is certainty.

People are entitled to their own opinions about what the definition ought to be. But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an “originalist,” one who claims to be bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.

Do read the whole thing, it is not very long. That was distressing enough to his legal position; but Ann Coulter has delivered a rather devastating legal analysis, which includes several points that, in all my study of the NBC question, I had not encountered before:

If Ted Cruz is a “natural born citizen,” eligible to be president, what was all the fuss about Obama being born in Kenya? No one disputed that Obama’s mother was a U.S. Citizen.

Cruz was born in Canada to an American citizen mother and an alien father. If he’s eligible to be president, then so was Obama — even if he’d been born in Kenya.

That is pretty simple logic. The answer, of course, is that all the birthers and Obot legal eagles alike, fully understood and did not question that a NBC had to be born on American soil. Thus, proving he was born in Hawaii was so important that they were willing to risk creating a phony birth certificate for the purpose.

Forgetting how corrupt constitutional analysis had become, I briefly believed lawyers who assured me that Cruz was a “natural born citizen,” eligible to run for president, and “corrected” myself in a single tweet three years ago. That tweet’s made quite a stir!

But the Constitution is the Constitution, and Cruz is not a “natural born citizen.” (Never let the kids at Kinko’s do your legal research.)

I said so long before Trump declared for president, back when Cruz was still my guy…

I was not aware that she has maintained this view for three years. Don’t forget that she is a lawyer herself, and by no means a stupid one. She is quite capable of doing her own legal research if she is interested in the case:

The phrase “natural born” is a legal term of art that goes back to Calvin’s Case, in the British Court of Common Pleas, reported in 1608 by Lord Coke. The question before the court was whether Calvin — a Scot — could own land in England, a right permitted only to English subjects.

…

Relying on English common law for the meaning of “natural born,” the U.S. Supreme Court has repeatedly held that “the acquisition of citizenship by being born abroad of American parents” was left to Congress “in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.” (U.S. v. Wong Kim Ark (1898); Rogers v. Bellei (1971); Zivotofsky v. Kerry (2015), Justice Thomas, concurring.)

A child born to American parents outside of U.S. territory may be a citizen the moment he is born — but only by “naturalization,” i.e., by laws passed by Congress. If Congress has to write a law to make you a citizen, you’re not “natural born.”

The concept that the birthright citizenship of those born overseas to an American parent is an act of naturalization by Congressional statute was new to me, and then there is the issue of ‘patrilineal descent’ mentioned by Tribe above:

Because Cruz’s citizenship comes from the law, not the Constitution, as late as 1934, he would not have had “any conceivable claim to United States citizenship. For more than a century and a half, no statute was of assistance. Maternal citizenship afforded no benefit” — as the Supreme Court put it in Rogers v. Bellei (1971).

That would make no sense if Cruz were a “natural born citizen” under the Constitution. But as the Bellei Court said: “Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.” (There’s an exception for the children of ambassadors, but Cruz wasn’t that.)

So Cruz was born a citizen — under our naturalization laws — but is not a “natural born citizen” — under our Constitution.

I keep reading the arguments in favor of Cruz being a “natural born citizen,” but don’t see any history, any Blackstone Commentaries, any common law or Supreme Court cases.

After more analysis, which should be read in full by anyone interested in this subject, she concludes with:

Unless we’re all Ruth Bader Ginsburg now, and interpret the Constitution to mean whatever we want it to mean, Cruz is not a “natural born citizen.”

Take it like a man, Ted — and maybe President Trump will make you attorney general.

Color me impressed by her well-reasoned analysis of the Constitutional legal issues, and her guts to stand up to conventional wisdom and boldly tell it like it is. I also listened to an interview she did with Hugh Hewitt about it. Even though he was trying mightily to discredit her, he (a law professor himself) offered her one more piece of evidence for her legal argument:

Winston Churchill’s mother was an American, born in Brooklyn, NY, although he was born in Great Britain. Yet it took a Presidential Proclamation by JFK in 1963, to make him an honorary citizen of the US. If Ted Cruz is a Constitutional NBC, then so was Winston Churchill, and this would have been an unnecessary redundancy.

It seems that as mentioned above, for overseas births prior to 1934, an American woman married to a foreigner could not confer American citizenship on her children. Subsequent acts of Congress have changed that ‘sexist’ feature of our past Immigration and Nationality policies that favored paternity; but it is well-established beyond question that our Constitution itself cannot be modified by statute.

That, of course, requires a Constitutional Amendment. Therefore, it must be true that the original intent and meaning of the NBC clause, could not have encompassed Cruz’ circumstances of birth. In fact, had he been born before 1934, he wouldn’t even have been an automatically naturalized ‘birthright’ citizen, much less a natural-born one.

Hewitt mentioned that he had asked Cruz about the Churchill question the day before on his show, so I searched and found that interview. I was stunned by Cruz’ answer. He correctly explained that at that point in history, Churchill’s mother could not pass on American citizenship; but that the statutes have since been changed, so that Cruz was himself born an American citizen under the laws of the United States. This shocking statement was true enough; but he is too damned smart a lawyer not to realize that Congress cannot modify the Constitution with a statute.

Thus, his whole position is resting on the hope that the sheeple will believe that the term ‘natural-born citizen’ means, and has always meant, the same thing as ‘born a citizen,’ by whatever rules Congress might from time to time establish. That is simply untrue, and he has to know it. If it were, our Founders would not have bothered to specify that the Commander in Chief be a NBC, while only requiring mere citizenship for all other Constitutional offices. There had to be a meaningful difference in their minds, or they would not have employed this legal term of art. If Winston Churchill could not have come ‘home,’ claimed his birthright citizenship, and run for POTUS, then how can Cruz? If you still think he is a NBC, please explain the difference. 😉 â—„Daveâ–º

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