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

[steepholm.livejournal.com]

I love that one of the professors is called "Tribe".

[kevin-standlee.livejournal.com]

I read that article, too, and I see what they are driving at, but I'm not sure I agree with the conclusion. I share your frustration with the lack of discussion of Goldwater (born in an incorporated US territory, not a state) and Cain (born in an overseas territory). I also suspect that if the issue is ever litigated, the courts will rule that children of at least 1 citizen at the time of birth, wherever born, are "natural-born" citizens.

It is indeed amusing, though, that if Cruz gets what he claims to want, then he should drop out of the race as ineligible. It would be nice for the "original intent" people to be honest enough to say, "We want the original intent as long as it serves our personal agenda; otherwise, we want flexibility."

[wild-irises.livejournal.com]

I understand that there are some indications that Cruz's mother was not naturalized when he was born (her appearance on Canadian voter rolls). Personally, I don't care, because like you, I believe if he's elected no one will do anything about it, but I do find it interesting.

[kalimac.livejournal.com]

Cruz's mother was born in the U.S. (Delaware, to be specific), so her naturalization is not an issue.

I understand that she never applied for Canadian citizenship, having been working there on their equivalent of a green card, and indeed at the time of her son's birth she hadn't been in Canada long enough to have had such an application accepted.

I further understand that the list she was on was not an official voters' roll, but a quick-and-dirty census that was intended as a first draft. But that one sounds odd to me; it's certainly not how we do it in the U.S.

[kalimac.livejournal.com]

An even more interesting case: Pat Buchanan. Born in the District of Columbia.

[mneme]

I'm not convinced. Tribe doesn't give natural law quotes; he just attempts to claim authority ex-cathedra. McManamon, by contrast, cherry-picks Blackstone and quotes herself as an authority (linking to her own abstract) for the answer she wants, quoting that natural born citizens are "such as are born within the dominions of the crown of England," while leaving out him later saying -- in the same commentary(!): "Yet the children of the king's embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain." Talk about terrible scholarship; far from aiding the birther (left or right) sycophants, Blackstone -- writing in 1764, but talking about common law established well before it, clearly implies that under common law, not only are ambassadors children (and by implication, others who owe no local aliegence) considered natural-born, but that the concept is -entirely- subject to legislative modification and clarification--as was done wrt children of US citizens born abroad.

Admittedly, Tribe uses unsupported bad reasoning in a good cause--pointing out the irony that the judicial philosophy Cruz claims to adhere to would, carrried to its logical extreme, be most likely to reject his candidacy. But that doesn't make the reasoning any less bad.

[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.

[(Anonymous)]

Tribe links to a 2005 paper by Sarah Helene Duggin and Mary Beth Collins which does include common law citations.

As for McManamon, I take her citation of her own 2015 paper simply to be for those who want to read the expanded version of the same argument she is making in this Washington Post column. In that paper, she quotes much more extensively from Blackstone and other British and American legal authorities in her attempt to determine what the phrase "natural born" meant when it was put into the Constitution.

Your own citation of Blackstone doesn't undermine McManamon's argument. When Blackstone discusses "the children of the [English] king's ambassadors born abroad", he is clear that this is a long-standing exception to the general common law principle that one is natural born to the nation that governs one's land of birth. (Also, I think you may be misreading Blackstone here, since you appear to believe he means that children of foreign ambassadors born in England were thus English subjects. He does not.) As for his reference to the 1350 statute that allowed the foreign-born children of two English parents to, as Blackstone writes, "inherit as if born in England", well:

(1) As McManamon shows in her longer paper, while not entirely consistent, subsequent judicial interpretations of that language usually do not read it as conferring natural born citizenship--and that includes the U.S. Supreme Court, deciding in 1898 on U.S. vs. Wong Kim Ark, who wrote that the 1350 act is not "declaratory of the common law". Also, such people could inherit in England, but could be restricted from other types of citizenship, and furthermore, subsequent acts limited these rights: McManamon lists numerous examples of people born abroad to two English parents in the 16th-18th centuries who had to be naturalized by acts of Parliament (at first by paying a fee for a private act and later, as per public acts to assist families who fled overseas prior to the Restoration, by making certain oaths at Westminster within a particular time frame)--because they weren't natural born citizens.

(2) Even if James Madison, et al. understood citizens could be "natural born" as per the 1350 law, it still doesn't apply to Ted Cruz, only one of whose parents when he was born abroad was a U.S. citizen. In her Post article, McManamon had noted there were some "revolutionary" 18th century modifications (detailed in her longer paper: a 1708 act, modified in 1731, made foreign-born children of natural born fathers--but not mothers--natural born; a 1773 act extended this status to foreign-born children whose paternal grandfathers were natural born), but as she notes in the Post, the U.S. Congress in 1790, exercising its Constitutional authority to create rules of naturalization, nonetheless felt the need to make foreign-born children of natural born citizens into citizens themselves. In her longer paper, she shows that early Americans, including Madison, did not think such children were natural born: "place" rather than "parentage", she quotes Madison as saying, "is what applies in the United States".

(In response to the original post's concern about McManamon not addressing the situation of whether McCain or Goldwater were natural born, at first I though the Blackstone quote she included in her Post article addressed that: just as those "born within the dominions of the crown of England" are natural born English citizens, so also those born in U.S. territories or on U.S. military bases are natural born U.S. citizens. Unfortunately, even in her longer paper, McManamon doesn't address the first two except in passing. And Duggin and Collins muddy those waters further.)

-MTD/neb