Cruzing

[calimac]

Law profs Lawrence Tribe and Mary Brigid McManamon have convinced me.

By the intended meaning of the U.S. Constitution's requirement for a "natural born Citizen", Ted Cruz is not legally eligible to be President.

McManamon explains the distinction. A natural-born citizen is one born in U.S. territory. (Frustratingly, McManamon doesn't clarify whether this is restricted to the metropolitan U.S. or includes other territory under U.S. control, which would cover Barry Goldwater and John McCain.) Cruz wasn't. He was born in a foreign country. End of story.

But his mother was a U.S. citizen, you object. Here's where McManamon gets ingenious. His mother's status made Cruz a naturalized citizen: naturalized automatically, at birth, instead of having to go through a naturalization procedure later on. But he's not a natural-born citizen.

That's what the Constitution was written to intend. Tribe puts the argument in context. If put to the Court today, the decision would probably go for the more inclusive meaning. But Cruz wants justices who stick to the original intent. Well, then, he can't have them, because they'd have to rule he was ineligible to appoint them.

I have no doubt, however, that if Cruz is nominated and then elected, the question will be just brushed aside.

Comments

[kalimac.livejournal.com]

Ambassadors, possibly so, and that might apply also to McCain's parents, for his father was on US military service in Panama (even leaving aside the question of whether the Canal Zone counted as US jurisdiction). But Cruz's parents were not ambassadors, so the question is irrelevant to this case.

But regarding the citizenship of other births to citizens abroad, contrary to your assertion that Blackstone is "talking about common law established well before it," he's talking about statutory law. "25 Edw. III. st. 2," that's a statute. You say that the common law is "subject to legislative modification and clarification," but McManamon says the same thing. What she distinguishes between, however, are statutory provisions of citizenship and the common law concept of natural-born citizenship. Blackstone says "to all intents and purposes" but not that they are actually the same thing; and more importantly, McManamon states that the Americans, whose Constitution we're discussing, did not accept that there was no difference.

Tribe does not provide the full reasoning, but I don't expect him to in an editorial; this is not a law journal article. Further, McManomon does provide what's missing in Tribe, so the two may be read together to provide support for the further point which is actually the subject of Tribe's article.

[mneme]

What Blackwater's ommitted text does establish is that under common law, "natural born" wasn't immutable; it was mutable by statute. Which does contradict McManomon's assertion that "natural born" was a single concept under common law that couldn't be redefined by statute; fundamental to her argument is idea that natural born was an immutable concept under CL. But Blackwater's discussion of it clearly implied that wasn't the case. Here's section 301 (the 1965 act that established the -current- requirements for citizenship):

Sec. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;


(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

=============================

There's clearly no "naturalization at birth" shit going on here. The same language is used for each case; that in order to acquire citizenship at birth, you must be born (in such and such circumstances). This is -the- document that currently describes how and under what circumstances someone becomes a citizen at birth, and claiming that it means one thing for those born on US soil and another for those born off it is pure sophistry.

[kalimac.livejournal.com]

No, what Blackstone says is that citizenship is modifiable by statute, and McManamon agrees with this. What he doesn't say is that "natural born" is modifiable by statute, only that statute can give the same rights as a natural-born citizen. And that's true also, so long as the law giving those rights does not distinguish between them; so far as I know, this provision in the Constitution is the only one which does.

The US statute you unnecessarily quote at such length doesn't say anything about "naturalization" because it doesn't have to. It defintes what "shall be nationals and citizens of the United States at birth," not what shall be "natural-born citizens." A person naturalized later in life is every bit as much a "national and citizen of the United States" after the nationalization as is a person born to that status, so the fact that the later may gain the same status by statute at birth is equally irrelevant to the question of whether they're "natural-born citizens."

The other groups listed by the law are not natural-born citizens, i.e. citizens by virtue of natural law, they're statutory-born citizens, i.e. born citizens by virtue of statute, i.e. automatically naturalized at birth.