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Birthers’ next target: Ted Cruz

posted at 2:04 pm on March 26, 2013 by

The man hasn’t even hinted that he’s planning to run for president, but by all means, let’s have a stupid, pointless fight over whether he’s a “natural born citizen” anyway:

Legal scholars are firm about Cruz’s eligibility. “Of course he’s eligible,” Harvard law professor Alan Dershowitz tells National Review Online. “He’s a natural-born, not a naturalized, citizen.” Eugene Volokh, a professor at the UCLA School of Law and longtime friend of Cruz, agrees, saying the senator was “a citizen at birth, and thus a natural-born citizen — as opposed to a naturalized citizen, which I understand to mean someone who becomes a citizen after birth.” Federal law extends citizenship beyond those granted it by the 14th Amendment: It confers the privilege on all those born outside of the United States whose parents are both citizens, provided one of them has been “physically present” in the United States for any period of time, as well as all those born outside of the United States to at least one citizen parent who, after the age of 14, has resided in the United States for at least five years. Cruz’s mother, who was born and raised in Delaware, meets the latter requirement, so Cruz himself is undoubtedly an American citizen.

No court has ruled what makes a “natural-born citizen,” but there appears to be a consensus that the term refers to those who gain American citizenship by birth rather than by naturalization — again, including Texas’s junior senator. Cruz, a constitutional lawyer, is unequivocal on the question. His press secretary, Catherine Frazier, tells National Review Online that, while a 2016 run is far from his mind right now — he’s “fully focused on his role representing Texans in the U.S. Senate” — there should be no confusion about his presidential eligibility. “He is a U.S. citizen by birth, having been born in Calgary to an American-born mother,” Frazier says.

In case you’re keeping score (and I am, over at Townhall), various birther sects have now scrutinized President Obama, Sen. Marco Rubio, Sen. Ted Cruz, Gov. Bobby Jindal, and…Mitt Romney.  HuffPo nails it by labeling this movement “equal opportunity annoyers.”  Can we finally stop associating birtherism with conservatism?  Please?

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Because American law, common law before it, is a beautiful thing.

Those who don’t understand it usually call those who know it scumbags.

cozmo on March 26, 2013 at 5:42 PM

I’m not denigrating the LAW (many of them anyway). It’s the people who manipulate the law that give lawyers a bad name. You have to admit that many people don’t like lawyers and that many of the bad things that have happened to our country are because of lawyers.

mrsmwp on March 26, 2013 at 5:49 PM

You are really slow…did Ted Cruz “accept” Canadian Citizenship at birth, how could he…ditto the example…Iran GRANTS ALL TEXANS Citizenship…they don’t ahe to accept it, they are by Iranian LAW…so now are they “Naturalized/Natural Born/Dual Citizenship” citizens and eligible for POTUS….

Your problem is you don’t have a good argument and it’s starting to show….

JFKY on March 26, 2013 at 5:50 PM

*sigh* I don’t know what is so hard to understand about this:

1. If you are born on United States soil, regardless of your parents’ citizenship status, you are an American citizen from birth.

2. If you are born on foreign soil, but at least one of your parents is a citizen at the time of your birth, you are an American citizen at birth.

The only requirement to be a “natural born citizen” is that you be a citizen from birth, rather than naturalized later.

Now, you can argue that’s not what the phrase in the Constitution is supposed to mean, and you can throw up whatever supporting documents you want to support that. But for as long as these cases have been argued, that is what it HAS meant.

In short, if Ted Cruz or Marco Rubio or Bobby Jindal or any other target of birtherism attempts to run for President, there is no court that will accept a challenge to their eligibility, no legislature that will pass a law saying that they are in eligible, no Secretary of State that will keep them off the ballot. Not one. Therefore, the whole argument is moot.

Shump on March 26, 2013 at 5:53 PM

JFKY on March 26, 2013 at 5:50 PM

Just because I don’t agree with you doesn’t mean I’m “slow”. My first question was whether or not Cruz was a dual citizen at birth. I have no idea. I am not questioning whether he is an American citizen — of course he is. I am only wondering whether he is natural born according to the founders. And until that issue is addressed once and for all we will continue to have these problems.

Now, you and Cosmo can ridicule me but I won’t be here to defend myself. I have to take my boys to Little League. Remember, I’m on your side. The issue is obviously not settled and mocking others will not help to settle it.

mrsmwp on March 26, 2013 at 5:57 PM

You have to admit that many people don’t like lawyers and that many of the bad things that have happened to our country are because of lawyers.

mrsmwp on March 26, 2013 at 5:49 PM

So?

There are bad lawyers just like there are bad electricians, bad doctors and bad teachers. All of which have been politicians.

Ignorant people love to dump on lawyers…until they need one.

Many more bad things have happened to this country because of good intentioned ignorant people.

Lawyers are scumbags and you know all about the eligibility of certain US citizens to be president, yet admit to not being a lawyer. You don’t have to be a lawyer to understand the US constitution and the case law that comes from it.

Yet:

Let me rephrase for simple minds:

mrsmwp on March 26, 2013 at 5:03 PM

That implies you are more aware of the law than others here.

You cannot have it both ways. This has been hashed out for years. If birthers had any law on their side, they wouldn’t be derided as the nutballs they are. Claiming its a conspiracy by the rest of the nation to make fun of them.

Who, pray tell are the simple minded?

cozmo on March 26, 2013 at 6:02 PM

Yay, the Birthers are here to completely misrepresent all previous laws and court cases on the subject! What fun!

AngusMc on March 26, 2013 at 6:02 PM

The issue is obviously not settled and mocking others will not help to settle it.

Just like the JFK Assassination isn’t ‘settled” because there Kooks out there who will ALWAYS claim something different….

But for the 99% of the rest of us it IS Settled….Granholm/Schwartzennegger…NOT ELIGIBLE. Cruz, Obama, McCain ELIGIBLE.

JFKY on March 26, 2013 at 6:03 PM

Every argument in this thread in favor of Cruz’ eligibility is based upon the premise that “Natural Born Citizen” is the same thing as a citizen at the time of birth.

That is a presumption, not a recognized legal principal. The term “Natural Born Citizen” seems to me to be a term of art. The question is: what does it mean? It may mean citizen at birth. It may mean born on US soil to two US citizens. Or it might mean something else. It has never been decided. Anyone claiming they know which one it is is talking out of their ass.

Court cases dealing with mere citizenship are not precedent on presidential qualification as the issues are different.

Statutes affording citizenship from the time period may be instructive as to meaning of the term, but are not dispositive, because a mere act of Congress cannot change the meaning of a Constitutional qualification requirement.

tommylotto on March 26, 2013 at 9:01 PM

What grade are you in?
BigGator5 on March 26, 2013 at 4:42 PM

Nice argumentation, there.
Read this article, then comment thoughtfully, if that’s possible.

Dexter_Alarius on March 27, 2013 at 9:02 AM

The term “Natural Born Citizen” seems to me to be a term of art. The question is: what does it mean?
tommylotto on March 26, 2013 at 9:01 PM

This is the thread you need to pick at. You’re on the right track. That term is found in Emmerich de Vattel’s “Law of Nations”, which we know the Founders had available to them for reference during the Constitutional Convention. De Vattel says in Book 1, Chapter XIX: “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.

See also the Supreme Court case of Minor vs Happersett which stated:
“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 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. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. “

Both sources define Natural Born Citizen to mean ‘born in the country to parents (plural) that were citizens’.

There’s a distinction between citizen, citizen at birth, and “Natural Born Citizen”. That federal courts, including SCOTUS, keep dodging the question is frustrating.

Dexter_Alarius on March 27, 2013 at 9:21 AM

Every argument in this thread in favor of Cruz’ eligibility is based upon the premise that “Natural Born Citizen” is the same thing as a citizen at the time of birth.

That is a presumption, not a recognized legal principal. The term “Natural Born Citizen” seems to me to be a term of art. The question is: what does it mean? It may mean citizen at birth. It may mean born on US soil to two US citizens. Or it might mean something else. It has never been decided. Anyone claiming they know which one it is is talking out of their ass.

Court cases dealing with mere citizenship are not precedent on presidential qualification as the issues are different.

Statutes affording citizenship from the time period may be instructive as to meaning of the term, but are not dispositive, because a mere act of Congress cannot change the meaning of a Constitutional qualification requirement.

tommylotto on March 26, 2013 at 9:01 PM

What you seem to be arguing here, though, is that short of a Supreme Court case specifically addressing the meaning of the term “natural born citizen” as used in the Constitution, there is nothing dispositive that we can look to in order to understand that qualification for President.

While I sympathize with what you are saying, I also disagree. First, I do not accept the reliance on courts, even the Supreme Court, as the arbiter of all things Constitutional. The Constitution itself certainly says nothing within its text about the Supreme Court having the final say on what the text means. It is, in fact, the idea that the courts, rather than the legislature, get to interpret the Constitution that has led us to much of the mess we are in today.

I see nothing in the Constitution that precludes the legislature from, through lawfully-enacted statute, defining what a particular term in the text of the Constitution means, and I also see nothing that specifically grants that power to the courts. In fact, since the Constitution specifically grants to Congress the power to set rules regarding naturalization, it would seem a logical extension that they would also be the arbiter of other citizenship-related questions, rather than the courts.

Regardless, though, in my mind the most dispositive thing we can look to is the fact that no legislature, no court, and no executive branch member, either federally or in any state, is ever going to interpret the Constitution the way the “birthers” say it should be interpreted. There is literally no one who has the power to do so who would deny Barack Obama, Ted Cruz, Marco Rubio, or anyone else listed in the article the opportunity to run for President. Therefore, short of calling for an actual revolution by the people, it would seem that the argument of the “birthers” is an academic one and a moot point.

Shump on March 27, 2013 at 9:35 AM

Thanks for the link to

http://www.scribd.com/doc/29744612/Breckinridge-Long-A-Natural-Born-Citizen-Within

“IS MR. CHARLES EVANS HUGHES A “NATURALBORN CITIZEN” WITHIN THE MEANING OF THECONSTITUTION?”

Chicago Legal News, Vol. 146-148, pp. 220-222
Author: Breckinridge Long (1881-1958)

That is a good historical document. It is too bad that the author of this column is ignorant of these legal positions. If he or the editor had done due research, perhaps they could cover this issue fairly. But it seems to me they have an another agenda rushing to comment on these positions from a standing of either ignorance or deceit.

marti124 on March 27, 2013 at 10:47 AM

What is often overlooked by Birthers is that the qualifications for being a citizen at birth when born outside of the U.S. are actually set by law in Congress. And these change over time. At one point dual citizenship may have been a disqualification for automatic American citizenship, but it certainly hasn’t been that way for the timeframe relevant to the birth of modern candidates.

Why does this person think that the qualifications for the Presidency have changed over time? There was never an amendment to the Article ll clause, although there have been at least eight attempts to amend it.

While I do think many “birther” conspiracies are waaaaaaaay out there, and possibly (probably) simply rooted in an intense dislike/distrust of obama, the question of Cruz, Rubio and Jindal qualifying is definitely not prompted from the same motives. Yet the people who ask the question are being lumped on in there as crazies anyway. So, it appears that all the “enlightened” non-birther folks believe that to question the meaning of a clause in our Constitution honestly makes a person some sort of loon.

How many people who are commenting on this issue actually know that the original presidential qualification clause was worded differently than the one we see in our Constitution? How many people reading this know that the Constitution was meant to be considered with the original intent of the men who crafted and signed it? If something changed over time and warranted an “update” , that would/could be addressed with a amendment.

The ORIGINAL wording intended for presidential qualification was:

No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States or hereafter be born a Citizen of the United States.

You notice that it was simply, “be born a Citizen”.

That was not considered strong enough to prevent the admission of foreigners to the administration of our national government, and so the qualification was changed to the one we are all arguing about here. And BTW, at the time our Constitution was signed there was no law in place to recognize dual allegiance/citizenship. If you were born in England while your US citizen parents were on a visit, you returned to the US an alien. The Congress had to pass laws to address this problem, the first Act doing so was in 1790. That would be after the Constitution was signed.

Also, I suggest any who are curious about the current US State Dept. take on dual citizenship go ahead and google that. It will educate you.

GrandeMe on March 27, 2013 at 12:07 PM

From the US State Dept. website:

7 FAM 082 DUAL NATIONALITY AND US LAW — GENERALLY
(CT:CON-106; 06-06-2005)

Current U.S. nationality laws DO NOT explicitly address dual nationality, but the U.S. Supreme Court has stated that dual nationality is a “status long recognized in
the law” and that “a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both.” See
Kawakita v. United
States
, 343 U.S. 717 (1952)

There is no US law in place that addresses dual citizenship specifically. It is “recognized” because it is an international issue as well.

GrandeMe on March 27, 2013 at 1:51 PM

I am not a “birther”, though I think questions about Obama’s citizenship status are and always have been open and unanswered. That said ….

For an eminent legal scholar Dershowitz can be amazingly sloppy when it suits him to do so. The issue is not whether Cruz is a “citizen” of this country. Obama was born with dual citizenship (British and American). The question is whether Cruz (and Obama, et al) is a “natural born citizen” as that phrase is used in the Constitution as regards eligibility to be President. The problem is that while there is ample evidence as to what Jay thought he meant and the reasons he called for that language, the phrase has never been construed by the Supreme Court (and please do not try to say the court in Minor v Happersett did so). If the phrase means what Jay thought it meant, then Obama was not eligible (as Hillary once argued), nor is Cruz. Ironically enough the closest “test case” we have had in recent memory was that All-American boy McCain who was born in the Canal Zone to a military family and that did not get out of the Senate.

All that said, Shump is right. It is academic at this point. No court is going to unwind eight years of Obama’s presidency, and no court is going to say that a person born to immigrant parents is not eligible to be President. Some may wish that were not so and rage and storm against the night, but it is what it is and so be it.

UnrepentantCurmudgeon on March 28, 2013 at 10:07 AM

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