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Sunday, January 17, 2016

Natural Born (Because My Brother Is REALLY Irritating Me)

Alright. Enough. I've wasted enough time on this. Engineers should not try to be lawyers unless they are really serious about it. Reading a few things on the internet written by people who are trying to convince you of something isn't "serious". There are also those who believe the royal family of England are really alien lizards. They are indeed impassioned and deeply serious, but you will not be held to be so if you read their reasoning and adopt it.

First, there is no legal support for the idea that there are three categories of citizens under US law - natural born, naturalized at birth by statute, and naturalized by election (acquiring citizenship under the laws of the US by successful application).

AND THAT IS THE ONLY LEGAL ARGUMENT on which the theory that Ted Cruz is not a natural born citizen is really grounded. If it is fatally flawed, then Ted Cruz is a natural born citizen under US law. That is so because he is a citizen by circumstance of birth.

Ted Cruz was born in Canada in 1970. His mother was born in Delaware, attended high school in the US, and attended college in the US. She then went to England to work and either married there or had married here and went with her first husband. There they divorced. While in England she gave birth to her first son, who sadly died. It appears he died in 1966 in England.

Because of all that, it doesn't seem possible that Cruz' mother had met the residency requirements for Canadian citizenship by 1970, when Cruz was born. Not surprisingly, when she returned with her son in 1974 or 1975, Cruz was considered to have been born a US citizen due to having been born to a US citizen.

While there has never been an SC case on the "natural born" presidential eligibility clause, there is plenty of history. Not surprisingly, most of it is on the issue of children born of alien parents on US soil. This is because, under English common law being born in the country gives you birthright citizenship, but in most western nations, citizenship follows the parents' (or parent's) citizenship.

In English common law, the children of foreign parents who were born in territory under the jurisdiction of the British crown were considered British citizens. However, by statute dating back to the 1300s, which pretty much makes it the body of law that was relevant at the time the Constitution was written and ratified, children of British citizens born abroad were also British citizens.

This goes way back. For slightly more objective sources than people who think Vattel claimed that children born in a land to foreign citizens acquire birthright citizenship in that land, try the Congressional Research Service, 2011, which you may find here.

But to expand a little, I suggest you also refer to the Lynch v. Clarke case, decided in 1844, which does in fact include a lot of common law history. As it points out, the children born abroad of British parents were in fact considered British citizens. Thus, the theory that Congress' view that persons such as Ted Cruz do not require naturalization somehow makes them citizens by statute instead of natural born citizens is bizarre, in my view. The laws and views of Congress on this topic have instead been based on the the laws preceding, and in effect, at the time the Constitution became the law of the land.

I suggest you start on page 13, where the topic of citizenship is taken up. There is a pretty definitive coverage of the jus soli issue.

On page 15 ( 248 internal), we reach the question of whether the 1802 act declaring children of American citizens born abroad citizens changed the law:
With regard to the Act of 1802, I do not think the children of our citizens born abroad, are aliens. Not that I subscribe to the argument of complainant's opening counsel, that the terms of the act itself embrace the children of all future citizens. But, as at present advised, I believe it to have been the common law of England that children born abroad of English parents, were subjects of the crown.
You may read on at your leisure. But do not omit this section (beginning at the bottom of external page 17, internal page 250), because it is material to the issue of the meaning of "natural born citizen",  as understood in law at the time of the Constitution's enactment:
In various statutes which have been enacted from time to time for more than fifty years past, to authorize aliens to take, purchase, hold and convey real estate, the expression used by the legislature in declaring the extent of the rights granted, is that they are to be as full as those of "any natural-born citizen", or of "natural born citizens". ... 

In one statute, passed April 27, 1836, Laws of 1836, chapter 200, the alien was to hold land as fully as if he had been a naturalized or natural born citizen, as if those two constituted all the classes of citizenship known to our laws. In the numerous colonial statutes of naturalization to which I have already referred, the expression which is used, is "natural born subjects." Both expressions assume that birth is a test of citizenship; and the continuance of the language subsequent to the Revolution and to the Federal Constitution, show that the effect of birth continued to be the same as it was before.
 In other words, the English common law knew two classes of citizens or subjects - those who were citizens or subjects by birth and those who were subjects by "naturalization". The laws of succession and inheritance of real property (real estate) were preoccupied with this issue, because dating from the feudal days, it would have been awkward for England if, as could well have occurred otherwise, the King discovered one day that large sections of British land were now subject to the authority of dukes who were subjects of a foreign king. That is why common law had to be changed in the colonies to allow aliens to inherit real property.

Thus, at the time the Constitution was written and ratified, the common law understanding of "natural born citizen" (they couldn't use the word "subject" any more) was a person who was a citizen by right of birth. This is really UNQUESTIONABLE. I would also note that this particular case and the legal reasoning within were cited later when official US legal opinions were requested. May I suggest starting with Wikipedia?

Is there any indication within the Constitution that the framers had anything else in mind? 

These are the relevant sections (omitting the Fourteenth Amendment, which obviously came later):
Article I, Section 3:
No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.
Article II, Section 1:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
It is worth noting that the Constitution, as originally written and as amended, delegates to Congress the official endorsement and selection of the President and Vice President based on the electors' lists. Thus there's a step in there in which, at least in theory, a constitutionally ineligible elected president could not be seated, and an alternate (the VP) chosen.

In Section 8 of Article I, we find that Congress has the authority to determine rules of naturalization:
The Congress shall have power ...
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
Now, right there the thought should occur that, since Parliament had passed legislation in England clarifying (declatory) rules of subjects or citizenry by birth, and since this power is explicitly delegated to Congress in our Constitution, it is very likely that the Framers intended that matters would continue as before, and that Congress would have the authority to clarify who was and was not a citizen by birth in the future.

The Fourteenth Amendment has probably changed that to the effect that Congress probably doesn't have the power to rule that persons born in the US don't have birthright citizenship.

However, for the purposes of this controversy, there is no internal evidence whatsoever the Founders intended to establish some unique class of natural born citizens having some meaning not then generally understood in common law. They used the term "natural born" because it was an understood term in law; they elaborated no further, because it was understood.

FURTHERMORE, there is internal evidence that the Framers did consider the issue of those born and residing abroad. The key is in the residence qualifications of 9 and 14 years for senators and presidents, respectively. 30 - 9 is 21. And 35 - 9 is 21. The idea was that those born or largely raised abroad who came back to this country and made a life here at their ages of majority (then 21, now 18), were valid candidates.

Finally, should the Supreme Court ever get such a case, I would expect them to see it as a powers case, and unananimously rule that since the Constitution cedes the power of providing for uniform naturalization laws to Congress, it MUST cede to Congress the power of determining to whom citizenship is granted by circumstances of birth. I would also expect at least one of the hapless aged US justices to observe that this matter being first determined by the electorate, and then by Congress, harassing the Supreme Court over the matter is superfluous in the extreme.

And do not trouble your sister any more with this Vattel Law of Nations crap.

First you must read the book, and if you do, you will find that Vattel's theory of citizenship is in fact in contrast to the English common law theory, which he specifically states. Try it!!! Go to Chapter 19.
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. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to [218] all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent.
 At the bizarre concept that Vattel, who if I am not mistaken was Swiss, is the preeminent authority on English common law, I may only laugh. Indeed, Vattel's rule is that the place of birth does not matter, and that children follow the citizenship of their fathers (now mothers and fathers), although he notes the English exception. Under Vattel's reasoning, Cruz is a natural born US citizen and a natural born Cuban citizen. Under English and US law (Canada follows English common law), Cruz was a Canadian citizen (until he did renounce his citizenship) and a US citizen.
A nation, or the sovereign who represents it, may grant to a foreigner the quality of citizen, by admitting him into the body of the political society. This is called naturalisation. There are some states in which the sovereign cannot grant to a foreigner all the rights of citizens,—for example, that of holding public offices,—and where, consequently, he has the power of granting only an imperfect naturalisation. It is here a regulation of the fundamental law, which limits the power of the prince. In other states, as in England and Poland, the prince cannot naturalise a single person, without the concurrence of the nation represented by its deputies. Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner. [219] §215.

Children of citizens, born in a foreign country.It is asked, whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§212); the place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him; I say “of itself,” for civil or political laws may, for particular reasons, ordain otherwise.

Never again. Get thee hence, Satanic Ranting Engineer! You tried to quote a Swiss who wrote a book about the law of nations in French (which I can read  and have READ and you cannot, nyah, nyah, nyah, note my kindness in finding an English version) as an authority on English common law. Worse, he disproves your argument. This is the definition of legal insanity.

I should call you up tomorrow and insist that sometimes current moves from the lower voltage to the higher voltage. And when you say no, it does not, I'll start bellowing that yes, it does, because the English royal house is actually a clan of space lizards. It would make more sense - in their universe, it does!!! I am relatively sure that I would be able to convince Prince Charles that it does.

Your noble qualities are many, but on this topic, they are pretty much buried under a mound of coal. Putrid, flaming coal. 

It reminds me of those ancient, wise words;
What do you call it when you kill a man? Homicide!
What do you call it when you kill your father? Patricide!
What do you call it when you kill your mother? Matricide!
What do you call it when you kill your little brother? Pesticide!!!


I had no idea that coal putrifies.

The most penetrating argument on the issue I have seen. When you cite English Common Law and the reasoning behind such, that is illuminating indeed.
Linking this to all those who doubt the citizenship status of Ted Cruz.

I'd have thought your brother would've learned long, long ago ... "Don't pester your sister!"

Agree with Jimmy J.: This is an excellent analysis of "natural-born", and worthy of dissemination to the confused. (Which brings up the question, do they even TEACH the Constitution in high school any more?)
A_Nonny Mouse, teaching the constitution would mean that people might know when it is being redefined out of recognition by judges (for example, see Commerce Clause). This would be contrary to the interests of the political class, so teaching the constitution is right out.
Well it appears you are concerned about Cruz's eligibility. No need. Question moot unless you are talking about him as Donald Trump's VP.
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