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Wednesday, January 20, 2016

Can I weigh in on this Ted Cruz business?

Look, I like the idea of a Ted Cruz presidency about as much as I like the idea of mackerel-n-arsenic ice cream. Any candidate endorsed by Glenn Beck and advised by John Bolton might as well have the biohazard symbol embossed on his forehead -- right between two tiny little horns.

But that doesn't mean I buy into this analysis by a Harvard law prof named Einer Elhauge, who argues that Cruz is not eligible to run because he does not meet the "natural-born citizen" requirement.

I'm no law professor. I visit law libraries only when fighting landlords. But a lawyer did once inform me of this general principle: If the law does not offer a specific definition for a term or word, then a simple dictionary definition will usually suffice.

As nearly everyone who has followed the Cruz controversy understands, the big problemo is that the Constitution uses the term "natural born citizen" without defining just what that phrase means. Professor Elhauge says:
Moreover, when the Constitution was enacted, the word “natural” meant something not created by statute, as with natural rights or natural law, which instead were part of the common law.

At common law, “natural born” meant someone born within the sovereign territory with one narrow exception.
One would think that the good professor would be thoughtful enough to offer a citation. I'd feel more inclined to accept his argument if he named a big, authoritative book which would prove what common law was in 1787. If he can't point to a big, authoritative book, then let's at least have a link to a web site. I'm not picky.

No such luck: The prof is simply asking us to take his word for it. Sorry. Not good enough.

So let us see what happens when we follow the course of relying on normal dictionary definitions. The most important dictionary to appear at the end of the 18th century was the one produced by Samuel Johnson -- and although it showed up about a decade after the Constitution was signed, I feel confident that James Madison would have recognized the authority of Johnson's masterpiece. Johnson offered ten definitions of the word "natural." I list them here, omitting most of the examples (as well as the long S, which I hate):
1. Produced or effected by nature; not artificial.

2. Illegitimate; not legal. [This definition is obsolete. I think it refers to a birth out of wedlock.]

3. Bestowed by nature; not acquired.

4. Not forced; not far-fetched; dictated by nature.

5. Following the stated course of things.

6. Consonant to natural notions.

7. Discoverable by reason; not revealed.

8. Tender; affectionate by nature.

9. Unaffected; according to truth and reality.

10. Opposed to violent; as a natural death.
I see nothing here that would preclude one from using the term "natural born citizen" to describe a child born of an American woman in a foreign country. If we apply definition 3 -- "not acquired" -- to the question of citizenship, then we can say that a natural born citizen is anyone who was born a citizen. Cruz qualifies: He never acquired citizenship.

Frankly, I don't see any validation for the professor's contention that "natural" means "something not created by statute." If that is how the word was defined at the time, someone forgot to inform Dr. Johnson.
According to a different very scholarly analysis from the long-time editor of Black's Law Dictionary I find persuasive, one cannot divine the full meaning of "natural born citizen" simply by parsing its parts.

It is a term of art that is founded in the term "natural born subject," and must be analyzed in the context of that common law, the COTUS-stipulated foundation of the meaning of our laws, and particularly otherwise undefined terms.

No simple law can change the Constitution, which instead requires an amendment.

The Congress is granted the power of naturalization, but not to change the definition of "natural born citizen" the Constitution sets as a requirement of eligibility for the presidency, without such an amendment.

Therefore, or so the argument goes, the various laws conferring the status of citizenship upon birth amount to naturalization at birth by law, which didn't actually take no effort (requiring an act of Congress to provide it, beyond what the COTUS provided, or the law wouldn't have been necessary).

The c. 1790 era Congress passed a law that the child of parentS (plural) who were American citizens was for all legal purposes to be considered or "deemed" a natural born citizen. The law was soon repealed and amended by withdrawing the natural born phrase, instead saying they were rather simply citizens. This was done on account of the foregoing issue of the Congress only having the power of naturalization, which was explicitly mentioned by no less a figure than Madison, iirc.

Should acts of Parliament prior to our founding also inform American law along with longer standing English common law (as part of it), the English Parliament provided that the child of a British subject FATHER would have automatic natural born subject status.

It was not until the '30s that the child of an American woman alone was to be considered an automatic citizen of the US by enacted law. Before that, it either required both parents to be US citizens, or that the father was.

That the law was passed shows it had not been considered the case before it, or the law would not have been necessary. And indeed it had not been the case until the '30s law passed that a US citizen mother's child was considered an automatic citizen, unless the father also was.

There is simply no doubt that the term in the Founders' day did not include the offspring of a US citizen mother alone. Yes, it is a relic of an archaic view of women, but that was their legal status, which is no secret.

An originalist, as Cruz otherwise claims to be, and as the conservative majority on the COTUS claims to be, must find him disqualifed under the COTUS, under the Founders' original understanding of the term. Not that they will, and not that those on the court believing in an evolving COTUS would, either.

I for one am quite surprised at what this scholarship reveals. Until a week ago, I would have had not doubt he was entirely qualified. I thought that McCain and Pelosi and Cruz's rivals were simply trolling when they mentioned doubts, when they knew better. I have changed my mind.


A citizen can be a naturalized citizen, but not a natural born citizen. In 1935 Adolph Hitler snuck into the United States and impregnated a U.S. citizen. Would that child be considered a Natural born citizen and therefore eligible to be president of the United States someday?


The reason being the father's forward trajectory after the impregnation is anti american by A, not living in this U.S., and B, by being active in the affairs of another country without regards to the United States as being his prima facie point of existence.

So Hitler's son or daughter would be a naturalized citizen that could vote but not hold the office of president or vice-president, but their sons or daughters would be natural born citizens assuming both parents consider the U.S. their home.

So yes, it's about who births the child and also what the affects of the father are in terms of their mobility either towards the U.S. or away after the birth. Barack Obama was not a natural born citizen by that yardstick since father not only drifted from the U.S, Obama's father actually became a political figure in Kenya, clearly a violation of what it would mean to have parents who "naturally" see the U.S. as their favored nation going forward.

Now, to check the veracity of my interpretation, find ONE FATHER of any president who remained in another country, loyal to that country over the United States after the birth of their son in which the son then went on to become president of the U.S. There are NONE before Barack Obama.
XI, there's that term again: Common law. WHAT common law? Cite your authority as to what this common law actually says.

You can't do it, can you?

"The Congress is granted the power of naturalization, but not to change the definition of "natural born citizen" the Constitution sets as a requirement of eligibility for the presidency..."

But the Constitution offers no definition of that term. That's why we have no recourse but to consult dictionaries.

Unless you can point us to this (apparently imaginary) Big Book of Common Law.
It should be noted that the first two comments both mention the importance of the Father in determining Natural Born Citizen and that the first three comments were published online at the same time so comment number two did not see comment number one before writing.

Oh, and Joseph ignored my post entirely.
Plus the first two posts are only one minute apart so clearly comment number two had not seen comment number one before posting.
William Blackstone's Commentaries on the laws of England: "Natural-born fubjects are fuch as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, fuch as are born out of it."

Further: "For, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themfelves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumftance, nor by any thing but the united concurrence of the legiflaturen. An Englifhman who removes to France, or to China, owes the fame allegiance to the king to England there as at home, and twenty years hence as well as now. For it is a principle of univerfal lawo, that the natural-born fubject of one prince cannot by any act of his own, no, not by fwearing allegiance to another, put off or difcharge his natural allegiance to the former: for this natural allegiance was intrinfic, and primitive, and antecedent to the other; and cannot be devefted without the concurrent act of that prince to whom it was firft due. Indeed the natural-born fubject of one prince, to whom he owes allegiance, may be entangled by fubjecting himfelf abfolutely to another; but it is his own act that brings him into thefe ftraits and difficulties, of owing fervice to two mafters; and it is unreafonable that, by fuch voluntary act of his own, he fhould be able at pleafure to unloofe thofe bands, by which he is connected to his natural prince."

Blackstone is generally the Big Book of Common Law, and is quite clear that, other than children of merchants and ambassadors, people born abroad are not natural born subjects.
Morgan'f fcan is juft filly.
Of no significance, but any good mind reader would know the Original Intent of that prerequisite was to exclude Alexander Hamilton from eligibility.
The common law was from England, and it's only a matter of scholarship and historical research as to how these things were handled historically in England to divine what these terms meant at the time, as cognatively derived from the term 'natural born subject.'

England's original standard was always Jus soli, being born on English soil, assuming the parents had no allegiance to another country's leader.

Madison, the father of the Constitution and its principle author, said the same thing about American citizenship in 1789, that it was founded upon jus soli.

As much as my several sources (law professors) are scholarly and highly convincing to me (and I'll provide links to them if you need them), we can instead reason backwards from mere citizenship status itself to cinch the case, imo.

Anyone who was a natural born American would have US citizenship upon birth (barring the parents' having loyalty to other countries, as with foreign ambassadors, or foreign sea-going merchants temporarily landed, exceptions already noted above).

Note that until the 1940 change of law I mentioned, a child born abroad with only one parent with American citizenship was not even granted regular citizenship, if that one parent was the mother. It is clear no one thought they should be, even though an older law had previously made the child of a father who was a US citizen a US citizen at birth.

Unless it is possible to be a natural born citizen and yet not be a citizen, this easily checked historical fact begins and ends the parameters of the meaning of natural born citizen. If, under law, a foreign-born child with only one US citizen parent, the mother, had to become naturalized to have citizenship, such a person was not a natural born citizen. Res ipsa dixit, and QED.

So then the question is whether that law changed the meaning of the term (and its prior effect in law from 1789 until 1940), or instead provided for an automatic and instanteous naturalization.

The shorter explanation is this, if after the birth of a child, by either natural born american citizens or natural americn citizens either on american soil or to parents abroad, if either parent then becomes more loyal to another country after the birth of their child the child converts from natural born citizen status to natural citizen status simply because we don't want a president or vice president that has a parent more loyal to another country because it may cause the son or daughter to act on behalf of their parent and the country they reside in. No matter what the offspring turned president does in terms of how they conduct business with the other country in which the parents now consider their homeland, as president the presidents actions towards that nation will be construed as either showing favoritism or overcompensating to the negative.

That is why natural born citizen status matters when it comes to the president and vice president. If both of a president's parents are clearly still american citizens, then even if they reside elsewhere that is still different than having a parent that is now more loyal to another country than the U.S. in terms of having their offspring become president of the United States.

One could argue on Barack Obama's status that since his father died well before Barack Obama became president, it no longer mattered that his father was a Kenyan politician who was basically booted out of the U.S. for a variety of reasons. If you go through the entire lineage of U.S. presidents, I do not think there is even one father or mother who renounced their U.S. citizenship and became a citizen of another country after the birth of their child that then went onto be president.
Once again, comments at 8:52pm and 9:03pm were granted visibility status at the same time by Blog proprietor Joseph Cannon and therefore the 9:03 pm comment did not see the 8:52pm comment prior to posting. I suppose the final issue does become, what if a naturalized child remains in the U.S. as an adult and his or her parent that has a bigger loyalty to another country passes away well before the american citizen turns the age at which they can run for president or be eligible for the V.P. position?
I guess I believe in conversion in both directions from naturalized citizen to natural born citizen and visa versa based on what becomes of the parents. And what becomes of the parents cannot be an overnight decision in which one or both suddenly embrace the US or renounce the country they previously favored in.

Whether you're a natural born citizen doesn't change after you're born, except arguably by treason or renunciation of citizenship by the person in question, and not their parents.

Obama would definitely have qualified as a common law natural born subject, Cruz would not. Of course Common Law, by definition, is overridden by statute.
ALessandro, I always respect what you say, and I always let your comments sail right on through. I just decided to let people thrash this one out for themselves. I've had my say.
Obama would not have sailed on through if his father were still a Kenyan politician.
Joseph, I thought you might be swayed by opinions from the comments section. Although I am not sure what your exact position on natural born citizen is. I don't recall you mentioning the underlying reason for the term. The ultimate purpose of Natural Born Citizen designation in my opinion was to not have a conflicted president with parents whose loyalty and citizenship presided with another country even if they were in the U.S. at the time of the birth of their child and even if they were both citizens of this country at the time and birth of their child.

The second issue being whether or not the status of the father mattered, and of course it did since women were not even allowed to vote while the discussions about Natural Born Citizen were going on back in the day. Since there has not been a president whose parents were loyal to another country while they were president that would add legitimacy to how Natural Born Citizen status was perceived and even enforced.

I used to think that Barack Obama did not qualify as a natural born citizen but rethinking it for this discussion the fact that Barack Obama's father passed away well before Mr. Obama decided to run for the presidency meant=he would not have that hurdle of having a parent from another country to cross over.

So, natural born citizen status is really not that complicated, living parents loyal to another country other than the U.S. should disqualify their own children, natural citizen or natural born citizen, from being either president or vice president of the United States.
Final comment. If Adolph Hitler had impregnated a natural born citizen in the U.S, prior to World War II, would that child have retained natural born citizen status in lieu of World War II, and would Hitler's subsequent death have allowed the child's natural born citizen status naturalized citizen during World War II then be reconverted to natural born citizen status after HItler's death?
Can we talk about a well-regulated militia now?
I had a coworker trying to convince me that Obama was not qualified to be President because he was not a natural born citizen. This was before he got elected. My response was that that sort of thing is irrelevant anymore......the President that the ultra wealthy want, is the President we will get. I suspect that is still the case, so am expecting either Hillary or Bush to win. If somehow Trump becomes President, then I'll know that he's not as "independent" as he claims to be.
Well Regulated Militia means keeping guns for the purpose of citizens coming together to defend against a military threat. However, by extension a person should also have the right to defend their own home if they choose. It's walking around with a gun at all times that is the slippery road to having one person becoming the judge, jury and executioner of another that I don't think the constitution defends.
Gus, if the wealthy did not want Hillary Clinton in 2008, and she is elected this year, than that means she changed her ways and capitulated? I doubt it.
I agree that many rich loons don't Hillary Clinton's anti wall street meme that gets reversed and thrown back at Hillary Clinton as being a Wall Street wallflower.
Barack Obama allowed parallel foreclosure on his watch to basically sucker over a million homeowners into the home mortgage modification trap only to be parallel foreclosed upon and lose their homes. Hillary Clinton would have none of that and that is why Obama eked out his faux democrat nomination win in 2008.
But to imply Hillary Clinton will only win if she is a shill is extremely sardonic.
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