Is Cruz a “natural-born citizen” ?

20 Comments / 20 Comments

1. Bear Klein Said:

   Yet somehow you are more able to come to legal conclusions than two former solicitor generals of the USA writing in the Harvard Law Review.?

   so tell me, how did they rebut the claims of the author of this article referring to naturalization by statute?

2. @ Bear Klein:
   bernard ross Said:

   Cruz was naturalized at birth. This provision has not always been available. For example, there were several decades in the 19th century when children of Americans born abroad were not given automatic naturalization.

   If automatic citizenship of those born abroad did not always exist and only came about by statute then it is a naturalization by statute because congress was not granted the power to define or add to the meaning of “natural born citizen” without an amendment to the constitution…. this means that citizenship as a result of this statute can only be a naturalization because congress ONLY has the power to set naturalization requirements by statute.

3. @ Bear Klein:
   that is a ridiculous argument… I quote from legal scholars, I did not make it up…… 2 attorney generals agreeing means nothing….. being attorney general is a political position not a position of papal infallibility. Neither you nor I can conclude this complex issue.. neither you nor they dealt with the issue I raised which comes from legal scholars. You hope to win by consensus or appealing to authority but authority does not determine the issue. Only an amendment or supreme court adjudication will make it go away. Calling the valid arguments agianst specious is itself specious. you have not debunked the argument against regarding naturalization by statute.. which is a constitutional argument involving separation of powers.
   what is your and their argument to debunk this articles argument of naturalization by statute of this article which I reposted at #17?

4. @ Bear Klein:

   Congress has provided by statute for the naturalization of children born abroad to citizens. Because of the senator’s parentage, he did not have to follow the lengthy naturalization process that aliens without American parents must undergo. Instead, Cruz was naturalized at birth. This provision has not always been available. For example, there were several decades in the 19th century when children of Americans born abroad were not given automatic naturalization.

   of course this is only one very good legal opinion which in the absence of an amendment would be taken into consideration by the supreme court along with dissenting views. It is far too complex for us here to adjudicate this issue. The bottom line is that it is a constitutional issue.

5. Bernard you do hot have law degree probably never had a law class?

   Yet somehow you are more able to come to legal conclusions than two former solicitor generals of the USA writing in the Harvard Law Review.?

6. @ Bear Klein:
   you and I went through all these the last time, I have read all these cases at that time and rebutted you then so I do not intend to repeat it again… as an example I again draw your attention to my post above at #14 where you repeated the same error as last time… so i will not repeat going through each point again and rehashing.

   Anyway, all these points are irrelevant to the cruz case as the crux of your point is simply that if one does not go through the typical process of naturalization then we must assume that the person satisfies the legal definition of “natural born person” for which there is not evidence.
   Bear Klein Said:

   All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time.

   I have read many different offerings from legal scholars as to the definition of “natural born citizen” but I have never encountered a definition which contains the phrase “someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time.”
   that is the crux of your position: the assumption that a person who is a citizen and does not go through a naturalization process is a “natural born citizen” and yet nowhere is this meaning mentioned in the constitution. If it were we would not be talking now.
   even if it were true that the absence of naturalization is synonymous with the meaning of “natural born citizen”, which it is not, you have still not dealt with the legal constituional argument I mentioned to you above:bernard ross Said:

   you keep making the assumption that because you need no apparent process of naturalization that it is not naturalization…. legal scholars refer to it as naturalization by statute (I beleive) because it was not initially the case. the absence of an apparent naturalization process does not conclude that it was not naturalization.

   please read up on this argument: basically it says that congress does not have the specific power under the constitution to define a citizen but it does have the power to determine the requirements of naturalization

   The Naturalization Act of 1790 stated “children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural-born citizens.”, but “considered as” does not change the definition of the term or the fact of the physical circumstances of birth, nor can conferring a privilege by statute change an eligibility requirement in the Constitution. The 1790 Act also provided that its terms only applied to the law then in effect, which was changed with the Naturalization Act of 1795. They made a mistake, using sloppy language, and corrected it in the next act on the subject. It is also irrelevant. It is a naturalization act, and a statute cannot change the meaning of a term in the Constitution. For that one has to go back to the usage of the term before 1787, and that means usage by Coke and Blackstone, especially Coke, in Calvin’s Case. That case controls the meaning for the Founders, who regularly referred to those authors when they were unclear on legal terms of art. The early Congresses often made constitutional errors. Then as now they did not always think everything through. For that matter, the Framers made some mistakes in the Constitution, but we are stuck with those mistakes unless or until we amend it. That error was corrected by repeal.It should be noted they were on their own titles naturalization acts, not “natural born definition” acts.
   http://www.constitution.org/abus/pres_elig.htm

   As cruz citizenship is acquired by benefit of a statute it is then considered a naturalization. This is indeed a serious constitutional question of separation of powers, etc as congress has no right which is not specifically granted under the constitution.

   My point is that all your postings and arguments and my past ones do not resolve serious legal arguments which are indeed many due to the constituion not clearly defining the term while at the same time clearly setting it apart from the other definitions of citizenship in the constitution. Bear Klein Said:

   There are plenty of serious issues to debate in the upcoming presidential election cycle. The less time spent dealing with specious objections to candidate eligibility, the better.

   what is truly specious is the notion that the serious constitutional arguments of very scholarly legal experts are specious becuase others are unable to understand the arguments. In my view cruz only satisfies the category of citizen by descent or derivative citizenship but it is unclear as to whether he would satisfy the criteria of “natural born citizen” which is still an unresolved matter. Congress would need an amendment or the Supreme court would have to adjudicate. Best would be an amendment of congress giving a precise definition, a statute alone would not have the same weight. If you read my posted link you will see that the question is more complex and unresolved without consensus. this is not a court of law where anything will be determined so posting all these one sided arguments is moot as the crux of your position is still plagued by both varying definitions of “natural born citizen” AND by the constitutional question of assuming that the absence of an apparent process of naturalization means that there was no naturalization. As it was unclear before the naturalization statutes it is clear that the citizenship was aquired through statute and NOT by the constitutional meaning of “natural born citizen”. Bottom line: it is still unresolved with good arguments on all sides.

7. Bear Klein Said:

   Senator Cruz would have been a “natural born Citizen” even under the Naturalization Act of 1790.

   The Naturalization Act of 1790 stated that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”[40]

   wait a minute, looks like someone AGAIN overlooked something:

   This act was repealed by the Naturalization Act of 1795, which removed the characterization of such children as “natural born,” stating that “the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States” while retaining the same residency restrictions as the 1790 act.[40]
   Current State Department regulation concerning the Naturalization Act of 1790 reads: “This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.”[41]
   https://en.wikipedia.org/wiki/Natural-born-citizen_clause#Naturalization_Acts_of_1790_and_1795

   we went through all this the last time you and I argued this point and you made the same error then also on the act of 1790.
   What we see instead is a very blatant action clearly removing it from the category of “natural born citizen”

8. We have both had the privilege of heading the Office of the Solicitor General during different administrations. We may have different ideas about the ideal candidate in the next presidential election, but we agree on one important principle: voters should be able to choose from all constitutionally eligible candidates, free from spurious arguments that a U.S. citizen at birth is somehow not constitutionally eligible to serve as President simply because he was delivered at a hospital abroad.

   The Constitution directly addresses the minimum qualifications necessary to serve as President. In addition to requiring thirty-five years of age and fourteen years of residency, the Constitution limits the presidency to “a natural born Citizen.”
   1. U.S. Const. art. II, § 1, cl. 5.
   All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.
   2. See, e.g., 8 U.S.C. § 1401(g) (2012); Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 303, 66 Stat. 163, 236–37; Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797.

   While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings. The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law
   3. See Smith v. Alabama, 124 U.S. 465, 478 (1888).
   and enactments of the First Congress.

   4. See Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888).
   Both confirm that the original meaning of the phrase “natural born Citizen” includes persons born abroad who are citizens from birth based on the citizenship of a parent.

   As to the British practice, laws in force in the 1700s recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used “natural born” to encompass such children.
   5. See United States v. Wong Kim Ark, 169 U.S. 649, 655–72 (1898).
   These statutes provided that children born abroad to subjects of the British Empire were “natural-born Subjects . . . to all Intents, Constructions, and Purposes whatsoever.”
   6. 7 Ann., c. 5, § 3 (1708); see also British Nationality Act, 1730, 4 Geo. 2, c. 21.
   The Framers, of course, would have been intimately familiar with these statutes and the way they used terms like “natural born,” since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone’s Commentaries,

   7. See 1 William Blackstone, Commentaries *354–63.
   a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.

   No doubt informed by this longstanding tradition, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were “natural born Citizens.” The Naturalization Act of 1790
   8. Ch. 3, 1 Stat. 103 (repealed 1795).
   provided that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .”
   9. Id. at 104 (emphasis omitted).
   The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress. That is particularly true in this instance, as eight of the eleven members of the committee that proposed the natural born eligibility requirement to the Convention served in the First Congress and none objected to a definition of “natural born Citizen” that included persons born abroad to citizen parents.
   10. See Christina S. Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 Gonz. L. Rev. 349, 371 (2000/01).

   The proviso in the Naturalization Act of 1790 underscores that while the concept of “natural born Citizen” has remained constant and plainly includes someone who is a citizen from birth by descent without the need to undergo naturalization proceedings, the details of which individuals born abroad to a citizen parent qualify as citizens from birth have changed. The pre-Revolution British statutes sometimes focused on paternity such that only children of citizen fathers were granted citizenship at birth.

   11. See, e.g., British Nationality Act, 1730, 4 Geo. 2, c. 21.
   The Naturalization Act of 1790 expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the United States at some point. But Congress eliminated that differential treatment of citizen mothers and fathers before any of the potential candidates in the current presidential election were born. Thus, in the relevant time period, and subject to certain residency requirements, children born abroad of a citizen parent were citizens from the moment of birth, and thus are “natural born Citizens.”

   The original meaning of “natural born Citizen” also comports with what we know of the Framers’ purpose in including this language in the Constitution. The phrase first appeared in the draft Constitution shortly after George Washington received a letter from John Jay, the future first Chief Justice of the United States, suggesting:

   [W]hether it would not be wise & seasonable to provide a . . . strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american [sic] army shall not be given to, nor devolve on, any but a natural born Citizen.

   12. Letter from John Jay to George Washington (July 25, 1787), in 3 The Records of the Federal Convention of 1787, at 61 (Max Farrand ed., 1911).

   As recounted by Justice Joseph Story in his famous Commentaries on the Constitution, the purpose of the natural born Citizen clause was thus to “cut[] off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interpose[] a barrier against those corrupt interferences of foreign governments in executive elections.”
   13. 3 Joseph Story, Commentaries on the Constitution of the United States § 1473, at 333 (1833).
   The Framers did not fear such machinations from those who were U.S. citizens from birth just because of the happenstance of a foreign birthplace. Indeed, John Jay’s own children were born abroad while he served on diplomatic assignments, and it would be absurd to conclude that Jay proposed to exclude his own children, as foreigners of dubious loyalty, from presidential eligibility.
   14. See Michael Nelson, Constitutional Qualifications for President, 17 Presidential Stud. Q. 383, 396 (1987).

   While the field of candidates for the next presidential election is still taking shape, at least one potential candidate, Senator Ted Cruz, was born in a Canadian hospital to a U.S. citizen mother.
   15. See Monica Langley, Ted Cruz, Invoking Reagan, Angers GOP Colleagues But Wins Fans Elsewhere, Wall St. J. (Apr. 18, 2014, 11:36 PM), http://www.wsj.com/articles/SB10001424052702303873604579494001552603692.
   Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a “natural born Citizen” within the meaning of the Constitution. Indeed, because his father had also been resident in the United States, Senator Cruz would have been a “natural born Citizen” even under the Naturalization Act of 1790. Similarly, in 2008, one of the two major party candidates for President, Senator John McCain, was born outside the United States on a U.S. military base in the Panama Canal Zone to a U.S. citizen parent.
   16. See Michael Dobbs, John McCain’s Birthplace, Wash. Post: Fact Checker (May 20, 2008, 6:00 AM), http://voices.washingtonpost.com/fact-checker/2008/05/john_mccains_birthplace.html [http://perma.cc/5DKV-C7VE].
   Despite a few spurious suggestions to the contrary, there is no serious question that Senator McCain was fully eligible to serve as President, wholly apart from any murky debate about the precise sovereign status of the Panama Canal Zone at the time of Senator McCain’s birth.
   17. See, e.g., Laurence H. Tribe & Theodore B. Olson, Opinion Letter, Presidents and Citizenship, 2 J.L. 509 (2012).
   Indeed, this aspect of Senator McCain’s candidacy was a source of bipartisan accord. The U.S. Senate unanimously agreed that Senator McCain was eligible for the presidency, resolving that any interpretation of the natural born citizenship clause as limited to those born within the United States was “inconsistent with the purpose and intent of the ‘natural born Citizen’ clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term ‘natural born Citizen.’”
   18. S. Res. 511, 110th Cong. (2008).
   And for the same reasons, both Senator Barry Goldwater and Governor George Romney were eligible to serve as President although neither was born within a state. Senator Goldwater was born in Arizona before its statehood and was the Republican Party’s presidential nominee in 1964,
   19. See Bart Barnes, Barry Goldwater, GOP Hero, Dies, Wash. Post, May 30, 1998, http://www.washingtonpost.com/wp-srv/politics/daily/may98/goldwater30.htm [http://perma.cc/K2MG-3PZL].
   and Governor Romney was born in Mexico to U.S. citizen parents and unsuccessfully pursued the Republican nomination for President in 1968.
   20. See David E. Rosenbaum, George Romney Dies at 88; A Leading G.O.P. Figure, N.Y. Times, July 27, 1995, http://www.nytimes.com/1995/07/27/obituaries/george-romney-dies-at-88-a-leading-gop-figure.html.

   There are plenty of serious issues to debate in the upcoming presidential election cycle. The less time spent dealing with specious objections to candidate eligibility, the better. Fortunately, the Constitution is refreshingly clear on these eligibility issues. To serve, an individual must be at least thirty-five years old and a “natural born Citizen.” Thirty-four and a half is not enough and, for better or worse, a naturalized citizen cannot serve. But as Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase “natural born Citizen” in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent — whether in California or Canada or the Canal Zone — is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose.

   http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/

9. On the Meaning of “Natural Born Citizen”

   Commentary by Neal Katyal & Paul Clement (Harvard Law Review)

   I extracted one small part with the relevant conclusion about Senator Cruze if eligible to be President. Read the rest of the article if interested in an excellent review.

   While the field of candidates for the next presidential election is still taking shape, at least one potential candidate, Senator Ted Cruz, was born in a Canadian hospital to a U.S. citizen mother.
   15. See Monica Langley, Ted Cruz, Invoking Reagan, Angers GOP Colleagues But Wins Fans Elsewhere, Wall St. J. (Apr. 18, 2014, 11:36 PM), http://www.wsj.com/articles/SB10001424052702303873604579494001552603692.

   Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a “natural born Citizen” within the meaning of the Constitution. Indeed, because his father had also been resident in the United States, Senator Cruz would have been a “natural born Citizen” even under the Naturalization Act of 1790. Similarly, in 2008, one of the two major party candidates for President, Senator John McCain, was born outside the United States on a U.S. military base in the Panama Canal Zone to a U.S. citizen parent.

   http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/

10. Bear Klein Said:

    By the way this is what happens in countries like Egypt or other African countries, or Russia.

    the problem in the USA is that both parties pretty much agree not to put each other in jail and end up covering up high crimes. If each gov prosecuted the last ones for their crimes we would end up with an honest set of pols purely out of fear.

11. too many folks confuse the issue with their personal experiences and their common usage understandings but this is actually a very complex question which one discovers AFTER reading the various asserted case law and precedents put forward in courts and analyzed by legal scholars.
    There is a common legal principle which in common language basically concludes that the specific reference to “natural born citizen” solely for the presidency must have a definition which is not the same as a native born citizen or citizen born in the USA

12. ppksky Said:

    If fewer that both parents are US citizens when you are born, then you are NOT, repeat NOT a US citizen, it doesn’t matter where you are born.

    no, only one citizen parent is necessary to prove citizenship of a child born abroad but citizen ship is NOT the same as the legal definition of “natural born citizen”

    the legal arguments and precedents run the gamut with the highest test being born in the USA of two citizen parents, the next being born in the USA with a citizen FATHER, etc etc downwards. These are base on scholarly legal research which cannot be compared with common understandings on forums like this.

13. Bear Klein Said:

    Washington Post article is pure malarky!. English common law does not apply in this case.

    actually I have read scholarly legal analysis in the past which says that english common law enters in when nothing else clarifies and in that case the phrase would relate to the common legal definition which would at the time have been English common law. Apparently it was undefined because it was understood clearly under the english common law at the time which informed the US constitution and law.
    Bear Klein Said:

    If at birth you are born an American Citizen (even of one parent -no where does it say you need two) you are a natural born citizen.

    NO, you are a citizen…. you keep making the assumption that because you need no apparent process of naturalization that it is not naturalization…. legal scholars refer to it as naturalization by statute (I beleive) because it was not initially the case. the absence of an apparent naturalization process does not conclude that it was not naturalization. citizenship by birth in the USA might also not fufill criteria for “natural born citizen”, this is also a point of disagreement among legal scholars. do not confuse your laymans interpretations and definitions with legal definitions, it has nothing to do with common understanding. I have also the same experience as you where I aquired citizenship derived from my parents who were naturalized before I was 14 years old and my son derived his from me when he was born outside the US…. but their was a process to establish that his citizenship was derived.

14. @ Ted Belman:
    Washington Post article is pure malarky!. English common law does not apply in this case.

    If at birth you are born an American Citizen (even of one parent -no where does it say you need two) you are a natural born citizen.

    If you need to go through the naturalization process to become a citizen you are not a natural born citizen.

    My son was born in Israel to myself (USA Citizen) and my Israeli wife. Upon his birth I filled out the paperwork for an American Born Abroad at the USA embassy. Immediately completing the paperwork he received his USA passport. He needed no naturalization process.

15. The institution of US citizenship has become vastly corrupted and needs to be corrected. The worse problem is birthright citizenship. It is very simple. If both your parents are US citizens, you are a US citizen by birthright, it doesn’t matter where you are born and yes, of course, you would eligible for presidency.

    If fewer that both parents are US citizens when you are born, then you are NOT, repeat NOT a US citizen, it doesn’t matter where you are born.

    Anything else is just corrupt and we need to REJECT the birthright citizenship of ANYONE whose parents are not BOTH US citizens at the time of birth. That means especially the current sitting president and BOTH the candidates Rubio and Cruz.

    We need to confront the legal system that tolerates it and repeal any laws to contrary. Where there is ambiguity, we need to clarify this.

16. Trump knows how to get attention. I as a Hillary hater if stuck with the option of Hillary v. Trump would have to vote Trump. Will he prosecute her actually?

    By the way this is what happens in countries like Egypt or other African countries, or Russia. Loose the race get the hell out of the country before you are arrested. Trump is funny for attention here but sounds like a third world candidate for President.

    Soon we will hear Viva La Trump. You evil so and so speaking about El Presidente Trump to be that way. He is better than your Israeli politicians. If you are talking Olmert I will agree. He is were he belongs in jail. Will Hillary and Olmert be cell mates? Wrong country sorry!

    Unfortunately with the corpses Trump is leaving in his wake will Hillary prosecute Trump if she is President for bad hair?

17. Trump: As president, I would prosecute Clinton
    http://www.washingtonexaminer.com/trump-as-president-i-would-prosecute-clinton/article/2583925

    one more reason to vote Trump

18. Eric R. Said:

    nobody seemed to have a problem with John McCain being born in the Panama Canal Zone

    the zone was a US possession and military base… hence born into the dominions of the US.Ted Belman Said:

    the Senate passed a resolution confirming that he was eligible. But this matter is for the courts to decide.

    a constitutional amendment defining natural born citizen should do the trick…. I dont know why they dont do this as it would serve everyone well. a senate resolution does not have any real legal effect, its not a law or an amendment. its more a statement of their “feelings”.

19. @ Eric R.:
    Actually, in 2008, the Senate passed a resolution confirming that he was eligible. But this matter is for the courts to decide. What happenned was that the Democrats agreed to support the resolution in exchange for the Republicans not contesting Obama’s eligibility.

20. Funny, nobody seemed to have a problem with John McCain being born in the Panama Canal Zone.