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Cruz birthers v Obama birthers

I am seeing a persistent number of Google news alerts about the eligibility of Ted Cruz. This morning I was reading an article at CNN from one alert, “Ted Cruz not the only one with a birther challenge” where I found something that sounded very much like the kinds of statements CNN made about Obama birthers, pushing them to the fringe. Fringe or not, this coverage keeps the controversy going.

Cruz was conferred American citizenship at birth because his mother is an American citizen, and legal experts have largely agreed that would qualify him for natural-born citizenship. The Texas Republican was born in Calgary, Alberta, Canada, and also had Canadian citizenship until he renounced it in 2014.

I don’t mean to say that news coverage of Cruz eligibility is a new thing (NPR had, for example, a story last March,“Is Ted Cruz Allowed to Run Since He Was Born in Canada?”), but the coverage this year is relentless.

An earlier poll showed that Americans were not well informed on the Cruz birthplace, with 40% of Republicans saying he was born in the US (only 29% said Obama was born in the US). I don’t think that would be the case today. A YouGov poll from May of 2014 found that only 39% of Americans say someone with the birth situation of Ted Cruz (not named) would be eligible and 44% not sure.

Beyond a remnant of Hillary Clinton supporters, Democrats didn’t think Obama had eligibility problems. The only people who doubted Obama’s eligibility were people who wouldn’t have supported him anyway, and that is why the birther issue made no difference in Obama’s election. With Cruz, it’s just the opposite. The very people who might be ideologically inclined to support Cruz are the ones who don’t like anything foreign. The people who think Cruz is eligible are the ones unlike to vote for him anyway.

I think this hurts Cruz in the primaries, and no doubt Donald Trump does too, or he wouldn’t be repeatedly raising the issue.

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82 Responses to Cruz birthers v Obama birthers

  1. avatar
    Scientist January 20, 2016 at 10:28 am #

    The goal of birtherism is and always has been political, rather than legal or constitutional.

    A question, Doc-Trump has made a big deal about Cruz taking the matter to court to “clear things up”. My understanding is that federal courts, at least, are constitutionally barred from issuing advisory opinions, so that isn’t possible. I believe state courts are not barred from doing so, but probably few judges would be willing to step into this muck unless forced to. Trump doubtless knows this, so his demands that Cruz take himself to court are schoolyard taunts.

    Now, of course Trump would have standing to sue, but I suspect he feels it’s likely he would get an answer he doesn’t want.

  2. avatar
    JoZeppy January 20, 2016 at 10:34 am #

    I have to say I find the Cruz “birther” coverage mildly annoying. While I do agree the prevailing sentiment among legal authorities is that Cruz is eligible, even those who hold that belief (at least among the legal community who are vaguely knowledgeable), will admit it isn’t settled law, and that there is a minority position, based on real legal arguments, and not a mere fringe theory, that Cruz is not eligible. Reading most press, one would believe it was an open and shut case. This wasn’t the case with McCain (although attacking is eligibility was more of a political mine field due to the circumstances of his foreign birth), and is even less so with Cruz.

  3. avatar
    JoZeppy January 20, 2016 at 11:19 am #

    Scientist: A question, Doc-Trump has made a big deal about Cruz taking the matter to court to “clear things up”. My understanding is that federal courts, at least, are constitutionally barred from issuing advisory opinions, so that isn’t possible.

    You are correct. The same clause of the Constitution requiring “case or controversy” that requires a party have standing to raise suit, prohibits a federal court from issuing an advisory opinion, which is what Trump is suggesting Cruz do.

    Scientist: I believe state courts are not barred from doing so, but probably few judges would be willing to step into this muck unless forced to.

    Depends on the state. Some states can, others can’t. And to be honest, it is a matter of federal law, that should properly be decided by the federal courts. A state court decision, unless taken to the Supreme Court, (but I question, if a state court issued an advisory opinion, how exactly could you take it to SCOTUS?), wouldn’t be binding on any other state.

    Scientist: Trump doubtless knows this, so his demands that Cruz take himself to court are schoolyard taunts.

    Never assume Trump knows something. It’s not a safe bet. And reading some of the complaints and demand letters written by Trump’s attorneys, I don’t assume they know the law on any subject either.

    Scientist: Now, of course Trump would have standing to sue, but I suspect he feels it’s likely he would get an answer he doesn’t want.

    Considering how quick Trump is to file meritless suits on every other subject, I’m actually surprised he hasn’t in the one instance where the question is really up in the air, and litigating the issue might actually be a good thing.

  4. avatar
    Scientist January 20, 2016 at 11:37 am #

    JoZeppy: Depends on the state. Some states can, others can’t. And to be honest, it is a matter of federal law, that should properly be decided by the federal courts. A state court decision, unless taken to the Supreme Court, (but I question, if a state court issued an advisory opinion, how exactly could you take it to SCOTUS?), wouldn’t be binding on any other state.

    I don’t see how you could take an advisory opinion to SCOTUS, since the standing issue would apply, just as it would in a federal district court. It would be a political, rather than a legal tool, and thus it’s risky for either party, particularly for Cruz if they declared him ineligible. So he would be a fool to do it even if it were possible.

    JoZeppy: Never assume Trump knows something. It’s not a safe bet. And reading some of the complaints and demand letters written by Trump’s attorneys, I don’t assume they know the law on any subject either.

    I agree. I recall early in the campaign, one of them claimed that spousal rape is not against the law, something which hasn’t been true in at least 30 years.

    JoZeppy: Considering how quick Trump is to file meritless suits on every other subject, I’m actually surprised he hasn’t in the one instance where the question is really up in the air, and litigating the issue might actually be a good thing.

    While it might be a good thing for the country, it wouldn’t be a good thing for Trump if he lost. As long as he’s ahead in the polls, why take the risk?

  5. avatar
    James M January 20, 2016 at 1:22 pm #

    JoZeppy: it isn’t settled law

    Are there two kinds of US Citizen (“born” and “naturalized”) or are there three (“born”, “naturalized”, and “natural born”) ?

  6. avatar
    Scientist January 20, 2016 at 2:00 pm #

    James M: Are there two kinds of US Citizen (“born” and “naturalized”) or are there three (“born”, “naturalized”, and “natural born”) ?

    I believe the argument is that there are 2, born and naturalized. Those in the situation of Cruz are naturalized at birth without any formal process, rather than at some point later on after jumping through hoops. I don’t know how strong that argument is, but it isn’t totally silly, as is the case with the Vattelian nonsense.

  7. avatar
    James M January 20, 2016 at 2:39 pm #

    Scientist: naturalized at birth

    “Naturalized at birth” is nonsense, and I apologize for beating this dead horse, but down this road you’ve got a sitting US Senator who would be an alien, with no evidence of naturalization. And if naturalization can happen “without any formal process” we’re getting into some really treacherous territory there. Would Ted Cruz be the first alien to become a US citizen without any process, or can we name any individual fitting that situation and demonstrate how they became a citizen?

  8. avatar
    Scientist January 20, 2016 at 2:46 pm #

    James M: but down this road you’ve got a sitting US Senator who would be an alien, with no evidence of naturalization.

    No, he’d be a naturalized citizen. The evidence of his naturalization is his mother’s birth certificate and his b.c. listing her as his mother. And of course Cruz is hardly unique in his situation. not even among those who have run for President.

  9. avatar
    JoZeppy January 20, 2016 at 3:18 pm #

    James M: “Naturalized at birth” is nonsense, and I apologize for beating this dead horse, but down this road you’ve got a sitting US Senator who would be an alien, with no evidence of naturalization. And if naturalization can happen “without any formal process” we’re getting into some really treacherous territory there. Would Ted Cruz be the first alien to become a US citizen without any process, or can we name any individual fitting that situation and demonstrate how they became a citizen?

    Hardly nonsense. Read Justice Black’s dissent in Rogers v. Bellei. He says quite plainly, “Congress is empowered by the Constitution to “establish an uniform Rule of Naturalization,” Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.” 401 U.S. at 840. And while the majority opinion doesn’t state it as plainly, the Court’s discussion is all based in the Congress’s Art. I, § 8 powers, i.e. the power to establish an uniform Rule of Naturalization. There are two types of citizens, born and naturalized. If you get your citizenship via Congress’s naturalization power, what does that make you?

    And who else would be an alien with no evidence of naturalization, well, I would argue Mr. Aldo Mario Bellei was one, and a Mr. John McCain was another. And there are countless more where those two came from .

  10. avatar
    JoZeppy January 20, 2016 at 3:26 pm #

    James M: Are there two kinds of US Citizen (“born” and “naturalized”) or are there three (“born”, “naturalized”, and “natural born”) ?

    Born, native born, and natural born have been used interchangeably by the courts. The courts have said there are only two types of citizens, born and naturalized. The question that has never been definitively answered is whether those that acquire their citizenship derivatively from their parents are “born” or are they “naturalized.” I know what Justice Black thought, but he only articulated that opinion in a dissent, so I can’t say that is the law.

  11. avatar
    ballantine January 20, 2016 at 3:55 pm #

    JoZeppy: Born, native born, and natural born have been used interchangeably by the courts.The courts have said there are only two types of citizens, born and naturalized.The question that has never been definitively answered is whether those that acquire their citizenship derivatively from their parents are “born” or are they “naturalized.”I know what Justice Black thought, but he only articulated that opinion in a dissent, so I can’t say that is the law.

    True. The ambiguity goes back to the English law we copied as statutory natural born subjects were said to be “naturalized” but were also called “natural born subjects” rather than “naturalized subjects.” Under English law, the power of naturalization clearly included the power to make “natural born subjects” of children descended from British subjects, whether at birth or otherwise. The concept was not tied to when such children were made subjects as some were made natural born subjects at birth and some only when they returned to, and resided in, England and took and oath and received sacrament in the Church of England. Parliament at other times gave children of subjects only the rights of naturalized subjects at birth, not natural born subjects. Whatever Dicey said in 1896 is really not supported by authority in the 18th and early 19th century, the period we should be looking to. The English rule clearly appeared to be that the status of children of subjects was wholly in the discretion of Parliament’s power of naturalization so that such persons could left as aliens or be given the full rights of natural born subjects or naturalized subjects. If we were following English law, it would seem reasonable that Congress would have the same power and could give such children the rights of natural born or naturalized citizens.

  12. avatar
    Jay January 20, 2016 at 3:57 pm #

    I was profoundly disappointed to see the first (to my knowledge) legal challenge to Cruz’s eligibility is coming from a self-described Liberal in Texas. I do not doubt Cruz’s eligibility, nor could I ever support him, but Trump claimed that Democrats would be the ones tying Cruz up in court, and I just assumed that the challenges would come from the far right.

  13. avatar
    bob January 20, 2016 at 4:14 pm #

    With respect to the Cruz birhers, I suspect more than a few really believe that the courts will suddenly discover the imaginary two-citizen-parent “rule,” and suddenly the nation will realize that Obama has been ineligible all along.

  14. avatar
    Dr. Conspiracy January 20, 2016 at 4:16 pm #

    Voeltz already sued Cruz in Florida, so Schwartz isn’t the first.

    Jay: I was profoundly disappointed to see the first (to my knowledge) legal challenge to Cruz’s eligibility is coming from a self-described Liberal in Texas.

  15. avatar
    Dr. Conspiracy January 20, 2016 at 4:19 pm #

    Do you have a citation? This would seem an important point.

    ballantine: Parliament at other times gave children of subjects only the rights of naturalized subjects at birth, not natural born subjects.

  16. avatar
    Dr. Conspiracy January 20, 2016 at 4:35 pm #

    While the Supreme Court has said things dividing citizens into various classes, the Court was not deciding the kinds of issues we are discussing and they were not briefed on them. I’m going to say that insofar as the children born overseas, it’s all dicta.

    At least some authorities who claim that citizenship for the foreign-born does not derive from the naturalization power of Congress but rather from the inherent power of any sovereign power of any state to say who its citizens are.

    James M: “Naturalized at birth” is nonsense,

  17. avatar
    Dr. Conspiracy January 20, 2016 at 4:45 pm #

    I didn’t not realize that Justice Thomas’ evasion of the question of the eligibility of Puerto Ricans to be president is exactly this same question as we are dealing with for Cruz, someone who was a statutory citizen at birth.

    The INS Act of 1952 defined “naturalization” as “the conferring of nationality of a state upon a person after birth, by any means whatsoever.” By that Cruz is not a naturalized citizen. It’s a mess pickle.

    JoZeppy: The question that has never been definitively answered is whether those that acquire their citizenship derivatively from their parents are “born” or are they “naturalized.”

  18. avatar
    bob January 20, 2016 at 4:52 pm #

    Dr. Conspiracy:
    I didn’t not realize that Justice Thomas’ evasion of the question of the eligibility of Puerto Ricans to be president is exactly this same question as we are dealing with for Cruz, someone who was a statutory citizen at birth.

    It is isn’t exactly the same (Puerto Rico is a U.S. territory, Canada is not; birth status would be governed by different subdivisions of section 1401), but, yes, issues about Cruz’s eligibility is closer to Thomas’ “evasion” than it is to issues about Obama’s eligibility.

  19. avatar
    gorefan January 20, 2016 at 5:02 pm #

    Dr. Conspiracy:
    Do you have a citation? This would seem an important point.

    Would have been before the Settlement Act of 1701.

    “That after the said Limitation shall take Effect as aforesaid no Person born out of the Kingdoms of England Scotland or Ireland or the Dominions thereunto belonging (although he be naturalized or made a Denizen (except such as [are (fn. 3) ] born of English Parents) shall be capable to be of the Privy Councill or a Member of either House of Parliament or to enjoy any Office or Place of Trust either Civill or Military or to have any Grant of Lands Tenements or Hereditaments from the Crown to himself or to any other or others in Trust for him.”

    http://www.british-history.ac.uk/statutes-realm/vol7/pp636-638#anchorn3

  20. avatar
    ballantine January 20, 2016 at 5:07 pm #

    Dr. Conspiracy:
    Do you have a citation? This would seem an important point.

    25 Edw. 3, st. 2 only provided the right to inherit, not the full rights on natural born subjects and hence they were generally not called natural born subjects. The extent of the rights provided under this statute was actually a matter of some dispute, but Blackstone clearly didn’t think they had the rights of natural born subjects. Later 19th century statutes bestowed some of the rights of natural born subjects on children with British mothers but didn’t call them natural born subjects. Only 4 Geo. II, c.21 and 13 Geo. III, c.21 provided all the rights of natural born subjects and hence were called natural born subjects, though 13 Geo. III, c.21 did not make such persons natural born subjects at the time of birth. The English law is really complicated on this subject.

  21. avatar
    ballantine January 20, 2016 at 5:21 pm #

    gorefan: Would have been before the Settlement Act of 1701.

    “That after the said Limitation shall take Effect as aforesaid no Person born out of the Kingdoms of England Scotland or Ireland or the Dominions thereunto belonging (although he be naturalized or made a Denizen (except such as [are (fn. 3) ] born of English Parents) shall be capable to be of the Privy Councill or a Member of either House of Parliament or to enjoy any Office or Place of Trust either Civill or Military or to have any Grant of Lands Tenements or Hereditaments from the Crown to himself or to any other or others in Trust for him.”

    http://www.british-history.ac.uk/statutes-realm/vol7/pp636-638#anchorn3

    4 Geo. II, c.21 and 13 Geo. III, c.21 were exempt from the Settlement Act of 1701. Hence, they were the only person who were considered natural born subjects.

  22. avatar
    Dr. Conspiracy January 20, 2016 at 5:30 pm #

    But:

    Doe v Jones 4 Durnf and East 308 Lord Kenyon says “I cannot conceive that the legislature in passing that act meant to stop short in conferring the right of inheritance merely on such children but that they intended to confer on them all the rights of natural born subjects.”

    ballantine: The extent of the rights provided under this statute was actually a matter of some dispute, but Blackstone clearly didn’t think they had the rights of natural born subjects.

  23. avatar
    ballantine January 20, 2016 at 5:48 pm #

    Dr. Conspiracy:
    But:

    Doe v Jones 4 Durnf and East 308 Lord Kenyon says “I cannot conceive that the legislature in passing that act meant to stop short in conferring the right of inheritance merely on such children but that they intended to confer on them all the rights of natural born subjects.”

    Yes, but that is not what the statute said and Blackstone, the primary authority our founders looked to, said:

    “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 has been so adjudged in behalf of merchants.25 But by several more modern statutes26 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.”

    Thus, the 18th century statutes went further than 25 Edw. III. St. 2. and these are the statutes that were cited as making “natural born subjects” and nothing Blackstone said would suggest they were natural born subjects.

    You have also not addressed the point that 13 Geo. III c.21 did not make persons subjects at birth. The statutes with respect to having a mother who was a subject was in the 1840s.

  24. avatar
    JoZeppy January 20, 2016 at 6:26 pm #

    ballantine: The English rule clearly appeared to be that the status of children of subjects was wholly in the discretion of Parliament’s power of naturalization so that such persons could left as aliens or be given the full rights of natural born subjects or naturalized subjects. If we were following English law, it would seem reasonable that Congress would have the same power and could give such children the rights of natural born or naturalized citizens.

    The big difference is the concept of Parliamentary sovereignty/supremacy, which we did not adopt. Parliament is not bound by Constitutional limits. There is no such thing as an “unconstitutional act of Parliament.” So while Parliament can do as it pleases, our legislature is bound by the Constitution. Parliament can declare whomever they want NBC, because Parliament reigns supreme above all other government institutions. Congress can only do, that which is delegated to it. It draws its power to make citizens by naturalization powers granted to it by the Constitution, and as Justice Black stated, thus anyone claiming citizen via that avenue must be a naturalized citizen. Changing that definition, is changing how the constitution functions, and thus can be done only via amendment.

  25. avatar
    Scientist January 20, 2016 at 6:49 pm #

    ballantine: If we were following English law, it would seem reasonable that Congress would have the same power and could give such children the rights of natural born or naturalized citizens.

    But, while Congress clearly made such children citizens, Congress really didn’t say in a clear manner whether they were regarding them as natural born or naturalized.

  26. avatar
    Ballantine January 20, 2016 at 6:52 pm #

    JoZeppy: The big difference is the concept of Parliamentary sovereignty/supremacy, which we did not adopt.Parliament is not bound by Constitutional limits.There is no such thing as an “unconstitutional act of Parliament.” So while Parliament can do as it pleases, our legislature is bound by the Constitution.Parliament can declare whomever they want NBC, because Parliament reigns supreme above all other government institutions.Congress can only do, that which is delegated to it.It draws its power to make citizens by naturalization powers granted to it by the Constitution, and as Justice Black stated, thus anyone claiming citizen via that avenue must be a naturalized citizen.Changing that definition, is changing how the constitution functions, and thus can be done only via amendment.

    It is only changing the definition if you have a definitive defination, which you don’t. Where is the evidence that they didn’t mean the common law plus persons made natural born by the legislature which was English law. Who said we didn’t define the power of naturalization in the constitution by what it meant in England, which included the right to make persons natural born. Either we looked to English law or we did not. And if we looked to English law, it doesn’t make sense that we would only look to the common law.

  27. avatar
    Scientist January 20, 2016 at 7:02 pm #

    Dr. Conspiracy: I didn’t not realize that Justice Thomas’ evasion of the question of the eligibility of Puerto Ricans to be president is exactly this same question as we are dealing with for Cruz, someone who was a statutory citizen at birth.

    Puerto Ricans became citizens by statute, but then so did those born outside the original 13 colonies, since the incorporation of those territories and their eventual statehood was by congressional action. I don’t think there is really a question over Puerto Rico, any more than there was for Barry Goldwater, born in the Arizona Territory or for Al Gore, born in DC. Those are part of the US, but Calgary has never been (even if many Canadians regard Calgary as the most American part of Canada, with cowboys, oil and conservatives).

  28. avatar
    Dr. Conspiracy January 20, 2016 at 7:28 pm #

    What about a declaratory judgment under 28 U.S. Code § 2201?

    JoZeppy: You are correct. The same clause of the Constitution requiring “case or controversy” that requires a party have standing to raise suit, prohibits a federal court from issuing an advisory opinion, which is what Trump is suggesting Cruz do.

  29. avatar
    Ballantine January 20, 2016 at 7:28 pm #

    Scientist: But, while Congress clearly made such children citizens, Congress really didn’t say in a clear manner whether they were regarding them as natural born or naturalized.

    Yes, and that may be the problem. I am suggesting on how we should frame the debate if we really were following English law which would look to the intent on the Congress passing the relevant statute. At the end of the day, I don’t know what the answer is but am mystified by the big name scholars who say this is an easy case.

  30. avatar
    gorefan January 20, 2016 at 7:34 pm #

    ballantine: 4 Geo. II, c.21 and 13 Geo. III, c.21 were exempt from the Settlement Act of 1701.Hence, they were the only person who were considered natural born subjects.

    20 Geo II c. 45 made foreign born Protestants who resided in the American colonies for seven years as natural born subjects “to all Intents, Constructions and Purposes, as if they and every of them had been or were born within this Kingdom”. But still had the restrictions placed by the Settlement Act of 1701.

    V. Provide always, and be it hereby further enacted, That no Person who shall become a natural-born Subject of this Kingdom, by virtue of this Act, shall be of the Privy Council, or a Member of either house of Parliament, or capable of taking, having or enjoying any Office or Place of Trust within the Kingdoms of Great Britain or Ireland, either Civil or Military, or having, accepting or taking any Grants from the Crown to himself, or to any other in Trust for him, of any Lands, Tenements or Hereditaments, within the Kingdom of Great Britain or Ireland; anything herein before contained to the contrary thereof in any wise notwithstanding.

  31. avatar
    bob January 20, 2016 at 7:39 pm #

    Dr. Conspiracy:
    What about a declaratory judgment under 28 U.S. Code § 2201?

    Section 2201 requires an “actual controversy.” Cruz being “curious” about his natural-born-citizenship status is no more of a “controversy” than when Steven Craig did it in 2009.

  32. avatar
    Dr. Conspiracy January 20, 2016 at 7:42 pm #

    Reminds me of the Tribe/Olson memo on John McCain.

    Ballantine: , I don’t know what the answer is but am mystified by the big name scholars who say this is an easy case.

  33. avatar
    Dr. Conspiracy January 20, 2016 at 7:44 pm #

    Could Cruz not argue that he has already faced several lawsuits and could reasonably expect more?

    bob: Section 2201 requires an “actual controversy.” Cruz being “curious” about his natural-born-citizenship status is no more of a “controversy” than when Steven Craig did it in 2009.

  34. avatar
    Ballantine January 20, 2016 at 7:56 pm #

    gorefan: 20 Geo II c. 45 made foreign born Protestants who resided in the American colonies for seven years as natural born subjects “to all Intents, Constructions and Purposes, as if they and every of them had been or were born within this Kingdom”.But still had the restrictions placed by the Settlement Act of 1701.

    V. Provide always, and be it hereby further enacted, That no Person who shall become a natural-born Subject of this Kingdom, by virtue of this Act, shall be of the Privy Council, or a Member of either house of Parliament, or capable of taking, having or enjoying any Office or Place of Trust within the Kingdoms of Great Britain or Ireland, either Civil or Military, or having, accepting or taking any Grants from the Crown to himself, or to any other in Trust for him, of any Lands, Tenements or Hereditaments, within the Kingdom of Great Britain or Ireland; anything herein before contained to the contrary thereof in any wise notwithstanding.

    Yes, but every naturalization act other than 4 Geo. II, c. 21 and 13 Geo. III, c.21 provided that they would not have the right to sit in parliament or privy counsel which was the only real distinction between naturslized and natural born subjects in English law in 1787. Hence, only those statutes were said to confer the status of natural born subjects.

  35. avatar
    bob January 20, 2016 at 8:02 pm #

    Dr. Conspiracy:
    Could Cruz not argue that he has already faced several lawsuits and could reasonably expect more?

    Not really, because with whom would be Cruz be arguing? Section 2201 is designed to litigate controversies between parties; it isn’t an ask-a-judge provision.

    Arguably, Cruz could sue other candidates (Trump, etc.) and ask for declaratory judgment. But the other candidates could avoid the suit simply by indicating they have no intention of challenging Cruz’s eligibility in court. And we’d be back to no actual controversy between parties.

  36. avatar
    Dr. Conspiracy January 20, 2016 at 8:19 pm #

    Note from the Advisory Committee on Rule 57:

    «The “controversy” must necessarily be “of a justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts.” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325, 56 S.Ct. 466, 473, 80 L.Ed. 688, 699 (1936). The existence or nonexistence of any right, duty, power, liability, privilege, disability, or immunity or of any fact upon which such legal relations depend, or of a status, may be declared. The petitioner must have a practical interest in the declaration sought and all parties having an interest therein or adversely affected must be made parties or be cited.»

    bob: Arguably, Cruz could sue other candidates (Trump, etc.) and ask for declaratory judgment. But the other candidates could avoid the suit simply by indicating they have no intention of challenging Cruz’s eligibility in court. And we’d be back to no actual controversy between parties.

  37. avatar
    bob January 20, 2016 at 8:34 pm #

    Exactly; Cruz going to a court and asking if he’s eligible is a classic advisory decree.

  38. avatar
    Scientist January 20, 2016 at 9:12 pm #

    Ballantine: Yes, and that may be the problem. I am suggesting on how we should frame the debate if we really were following English law which would look to the intent on the Congress passing the relevant statute.

    I don’t think Congress had any intent regarding presidential eligibility in passing the McCarran-Walter Act under which Cruz gained citizenship. As far as I know it never came up in debate. Which is part of the problem with the natural born citizen clause as a whole-it was never debated at the constitutional convention, so all the arguments are by inference. Another reason it should be done away with IMO…

  39. avatar
    Dave B. January 20, 2016 at 10:49 pm #

    Handy Canadian law site I’d never seen before:
    https://www.canlii.org/en/index.html

  40. avatar
    CRJ January 21, 2016 at 1:53 am #

    JoZeppy: Considering how quick Trump is to file meritless suits on every other subject, I’m actually surprised he hasn’t in the one instance where the question is really up in the air, and litigating the issue might actually be a good thing.

    Trump doesn’t like winning by a couple of points. He likes total domination and big big wins. The Courts have proven much more Politically Polluted and it’s sad. Hillary Clinton would confirm anything she’s done wrong is the result of a fabricated right wing conspiracy.

    I know my ego as well as every other Politicians Ego is fair game, however this is a pretty good example of Trump not Trusting the Judiciary.

    It might be an internal problem for Trump, but the treatment of the Judiciary on this NBCtzn subject, many here concurr is not settled law, is and has been horrible!!!

    If Trump was alone in thinking that, it might be a problem. But you see he’s not alone. The anti-establishment crowd in this Country, on both sides of the isle, have learned some lessons about the corruption represented by the Courts in Judy v. Obama 14-9396 and the previous U.S. Supreme Court Case that came up out of a Georgia Supreme Court 12-5276. These had at least a President Candidate with standing. The lack of respect for that standing is some of the cruelest we have ever seen.

    If the paltry few dozen or so making comments here could account for the 42,000 Reads at my Scribd account there might also be merit in the [Ego thing], but they can’t and personally I’ve lost so much more than gained as far as money, or fame, or glory that typically feed Egos. My pleasure really has been serving you because I’ve received nothing else and won nothing.

    American’s are so frusturated with the [ political correctness ] accenuated by the [ telepromtor ] they by God are going to make sense out of what ever Trump says and Palin for that matter.

    There comes a point and time in elitism that those practioners don’t really think their own sh*t stinks. The fact that the New York Times now thinks the Issue of NBCtzn is ripe and over due only accentuates the cover for Obama that has been going on.

    Let’s stop trying to fool anyone, that pretty much everyone knows there is [something] that just isn’t right about the qualifications of Obama constitutionally and the Cover Up smells bad.

    Now, if Obama had not been part of this, he could have very easily volunteered a submission in my Court Cases to clear it up, but he hasnt. Believe me in Court I’d produce anything I had to for you. My transparency to you as far exceeded Obama’s and always will. I don’t have anything to hide in Court that I would ever consider important enough to tear the Country apart like Obama has done in his couchy couchy game as a circus act clown.

    He’s run from his own integrity like a jackass would run from a cougar. You can say all you want here on this forum, but it doesn’t amount to spit in comparison to a Court of Law. That’s something missing from this Principle Obama has not volunteered to serve up in Court and settle. His wins are Fraudulent. No better than Armstrong’s on steroids. They will be memories of losing based on cheating and victory by fraud. Stories those in prison tell each other.

    Obama’s idea of settling the matter has more to do with what Trumps doing now via The Court of Public Opinion. I’ll serve’em a dish of ice cream in the White House Press Core and schuck and jive them like a Carnival Barker. He’s totally disgraced the Office of President.

    Hey, it works for Obama, seems to be working for Trump. Avoid the Court unless it’s fixed for you, it’s too risky.

    My desire has been for the Court. Not against the Court. My desire has been in defense of the Constitution , not against it. My work that many have called frivilous now is termed a pretty good idea by some very influential Constituional Scholars including Lawrence H. Tribe, Duggin, and BIG TIME Carl Hulse NYTimes Washington Editor.

    http://codyjudy.blogspot.com/2016/01/breaking-report-presidential-political.html?m=1

    Now, where I.Q.’s suspended for 7 years or has the Birther Problem just not gone away like everyone thought it would? Mind you these are hard core Obama supporters suddenly coming up with “its unsettled”.

    They don’t want to open that can of worms on Obama, but they are all to happy to on Cruz and in such deny Cruz a supposed conferred Citizenship from his Mother. That’s political cuz Cruz is a Republican.

    They don’t want to talk about conferred Citizenship from Obama’s Father as important and they sure do not want the Power of the Court’s Discovery unearthing what Obama says is not our business when it comes to whose in the Office of President.

    Of course Obama was served in 14-9396 but elitism and executive privilege has given you all as the American Public the middle finger. I say, in Court where it counts, its gonna be very hard for him not to live without the same treatment when he gets out. Reaping what he’s sewn certainly was his choice. .and it will continue to be.

    That’s the painful side of Ego getting you. Service to the Country in defending the Constitution without pay is about the least side of Ego as you can get. The fact some here confuse the two is just a sign of confusion. Clarity will come. .it will come soon.

  41. avatar
    The Magic M (not logged in) January 21, 2016 at 6:15 am #

    JoZeppy: Considering how quick Trump is to file meritless suits on every other subject, I’m actually surprised he hasn’t in the one instance where the question is really up in the air, and litigating the issue might actually be a good thing.

    Because the issue being not settled has propaganda value, the issue being settled by Trump’s side losing doesn’t.
    Which is one of the reasons Ankeny vs. Daniels was never appealed to SCOTUS (as it would’ve ruined all claims of how Minor vs Happersett was allegedly still the controlling case on the issue of citizen parents).
    Which is why no Republican candidate / top politician ever took a clear anti-birther stance.
    Remember how many of them said about Obama “I believe he’s a citizen”, thereby not taking a stance on his natural born citizenship and therefore not taking a stance on his eligibility. It was a reply that satisfied the MSM but was still a dog whistle to birthers. [Similar to current German Nazis who publically state “I’m not a Nazi”, thereby making a seemingly clear statement about themselves, yet to their fellow Nazis, they have not denounced anything because they have redefined “Nazi” to mean “National Zionist”, so to *them*, they have just said “I’m not a zionist”.]

  42. avatar
    Dr. Conspiracy January 21, 2016 at 7:20 am #

    In logical or mathematical argument, the use of a false statement allows you to prove anything even though the argument is sound. Using a sound argument to prove contradictory results means a premise is false. In the argument over Cruz eligibility we have one premise (from Bellei) that a statutory citizen at birth is “naturalized” and we have another premise from US law that defines naturalization as the acquisition of citizenship afterbirth.

    To belabor the point, here are two arguments:

    a) Citizens are divided into two exclusive classes: naturalized and natural born.
    b) A person who becomes a citizen by virtue of a Congressional statute is naturalized
    c) Ted Cruz became a citizen by statute
    Therefore: Ted Cruz is naturalized.
    Therefore: Ted Cruz is not natural born

    a) Citizens are divided into two exclusive classes: naturalized and natural born.
    b) Naturalized citizens are those who become citizens after birth
    c) Ted Cruz was a citizen at birth
    Therefore: Ted Cruz is not a naturalized citizen
    Therefore: Ted Cruz is natural born.

    That calls into question:

    1) Whether natural born and naturalized are exclusive classes of citizen (disjoint sets)
    2) What “naturalized” means in context.

    No wonder arguments over Cruz eligibility result in different outcomes. When there is a dispute over premises, it can only be resolved by an appeal to authority, and the only authority that can resolve it is the Supreme Court fully briefed on the question of presidential eligibility.

  43. avatar
    Scientist January 21, 2016 at 10:29 am #

    Dr. Conspiracy: the only authority that can resolve it is the Supreme Court fully briefed on the question of presidential eligibility.

    The 20th Amendment says Congress gets to resolve it, but only after the election.

    But really would a Supreme Court decision resolve the issue? Did Roe v. Wade end the abortion debate? Did Citizens United resolve the issue of campaign finance? Did Dred Scott lead the North to accept slavery? I suppose a decision that Cruz was ineligible would result in him being off the ballot, which would certainly make it difficult to win. It would probably stop any future candidates not born in the US. But a decision that he was eligible probably wouldn’t change the mind of the birthers, who would, of course, be free not to vote for Cruz, despite the Court.

  44. avatar
    Reality Check January 21, 2016 at 11:28 am #

    What’s really needed is a Constitutional Amendment making any citizen from birth a natural born citizen whether they are a citizen by the Fourteenth Amendment or statute passed by Congress. It’s probably not going to happen in this political climate however.

  45. avatar
    bob January 21, 2016 at 12:08 pm #

    CRJ: The Courts have proven much more Politically Polluted and it’s sad.

    There’s no evidence of any pollution, as it has been explained to Judy repeatedly, it is better tactically for Trump to play in the court of public opinion than to go to court.

    The anti-establishment crowd in this Country, on both sides of the isle, have learned some lessons about the corruption represented by the Courts in Judy v. Obama 14-9396 and the previous U.S. Supreme Court Case that came up out of a Georgia Supreme Court 12-5276.These had at least a President Candidate with standing. The lack of respect for that standing is some of the cruelest we have ever seen.

    Judy continues to lie about his own cases: his vanity candidacy does not confer him standing, his cases weren’t even dismissed for lack of standing. The “corruption” exists only in Judy’s imagination as a way for him to not take responsibility for his own failings.

    personally I’ve lost so much more than gained as far as money, or fame, or glory that typically feed Egos.

    Judy’s repeated, fruitless efforts despite his continuous losses further show that he is motivated only by his ego.

    My pleasure really has been serving you because I’ve received nothing else and won nothing.

    Judy’s pleasure at unasked-for service is further proof that he driven by ego; Judy admits it with these statements.

    The fact that the New York Times now thinks the Issue of NBCtzn is ripe and over due only accentuates the cover for Obama that has been going on.

    There is no “cover” (or “cover up”) for President Obama, and the eligibility issues surrounding him and Cruz are very different, hence the different reactions.

    Now, if Obama had not been part of this, he could have very easily volunteered a submission in my Court Cases to clear it up, but he hasnt.

    President Obama’s general strategy to ignore this frivolous issue raised only by the usual ankle biters is a reasonable choice.

    Believe me in Court I’d produce anything I had to for you.

    There’s no reason to believe that because Judy can’t even produce his IFP application.

    My transparency to you as far exceeded Obama’s and always will.

    Judy lies and puffs his ego, as he continuously refuses to produce his IFP application.

    tear the Country apart like Obama has done in his couchy couchy game as a circus act clown.

    It is the clowns, and not President Obama, trying to tear the country apart.

    run from his own integrity like a jackass would run from a cougar.

    Says Judy, who continuously lies about the thousands that he terrorized.

    That’s something missing from this Principle Obama has not volunteered to serve up in Court and settle.

    The issue has been settled — repeatedly — in court. Birthers like Judy are just sore losers who refuse to accept the results.

    His wins are Fraudulent.

    Judy again bears false witness.

    They will be memories of losing based on cheating and victory by fraud. Stories those in prison tell each other.

    Judy’s vision of the future is entirely his own.

    I’ll serve’em a dish of ice cream in the White House Press Core and schuck and jive them like a Carnival Barker. He’s totally disgraced the Office of President.

    Judy, unsurprisingly, flirts with racism.

    My desire has been for the Court.

    Judy’s desire has always been about Judy. As proved by his ample ability to dispute yet another intelligent conversation with his self-serving drivel that no one cares about.

    My work that many have called frivilous now is termed a pretty good idea by some very influential Constituional Scholars including Lawrence H. Tribe, Duggin, and BIG TIME Carl Hulse NYTimes Washington Editor.

    Judy’s frivolous “work” has nothing to do with the informed opinions of the intelligent people to whom Judy tries to attach himself to.

    Mind you these are hard core Obama supporters suddenly coming up with “its unsettled”.

    President Obama’s natural-born citizen is well settled because he was born in the United States.

    They don’t want to open that can of worms on Obama, but they are all to happy to on Cruz

    Because Cruz was not born in the United States.

    That’s political cuz Cruz is a Republican.

    If Cruz had been born in the United States, only birthers would think Cruz was ineligible.

    Of course Obama was served in 14-9396

    Judy lies even about who was served in his dead case (hint: It wasn’t President Obama).

    Reaping what he’s sewn certainly was his choice. .and it will continue to be.

    Oh, the irony.

    Service to the Country in defending the Constitution without pay is about the least side of Ego as you can get.

    Judy desperately wants the spotlight on him; that is exactly being motivated by ego.

  46. avatar
    bob January 21, 2016 at 12:11 pm #

    Harvard law prof Elhauge also thinks Cruz is ineligible.

  47. avatar
    bovril January 21, 2016 at 12:40 pm #

    As far as I can see it the Bellei case was the perfect one to be revisited via a fresh case and have the clarity needed provided.

    Alas, since Congress overturned the original legislation that led to this godawful judgement in 1978 any direct case would never get anywhere as the point would be moot.

    I’m afraid unless Donny Combover or another of the 7 dwarves of the GOP beauty contest raises a case to get Cruz disqualified on NBC grounds then we are never really going to know until the next furrin born, one US citizen parent, presidential candidate comes along.

    IF and it’s a big IF someone with standing challenged Cruz and IF it gets to the SC then my own personal WAG is that the SC would rule that if you are born a citizen (even via legislation) as opposed to be made a citizen post birth you be an NBC.

    It then becomes a matter for Congress to right clear and unambiguous legislation on the issue.

    Then again, I ain’t no SCJ or constitutional scholar so whaddoiknow….. 😎

  48. avatar
    Steve January 21, 2016 at 12:48 pm #

    The Magic M (not logged in): Because the issue being not settled has propaganda value, the issue being settled by Trump’s side losing doesn’t.

    Yes, I think that’s what I referred to when I said that Trump will benefit more from keeping the controversy going than he will from resolving it.

  49. avatar
    JoZeppy January 21, 2016 at 1:05 pm #

    Ballantine: It is only changing the definition if you have a definitive defination, which you don’t. Where is the evidence that they didn’t mean the common law plus persons made natural born by the legislature which was English law.Who said we didn’t define the power of naturalization in the constitution by what it meant in England, which included the right to makepersons natural born.Either we looked to English law or we did not.And if we looked to English law, it doesn’t make sense that we would only look to the common law.

    Because there is no evidence, you resort to the common law definition. That is a rather well accepted principal of interpreting undefined terms in the Constitution. WKA gave us a common law definition, and that definition has never been seriously challenged. We also have a good amount of case law that has used born, native, and natural born interchangeably. The case law has also stated pretty clearly you are either born or naturalized a citizen. The Constitution grants the legislature a power to pass Naturalization statutes. You have the context of Rogers v. Bellie and the outright statement in Justice Black’s dissent. On the opposite side, you have the suggestion, entirely unsupported by anything actually in the law, that the Legislature has the power to change a definition in the Constitution, effectively changing how the Constitution functions (since it unquestioned that without a statute, neither Cruz or McCain would even be citizens) circumventing the amendment process.

    I would argue this is an unprecedented extra-constitutional power, akin to Parliamentary Sovereignty, with no support anywhere in the law. And I would further argue, that any such power to fundamentally change how the Constitution functions needs a pretty solid basis in the law, not merely the absence of a probation of such power. You should not be able to do indirectly what you can’t do directly. Congress can’t amend the Constitution on its own, why should it then have the power to alter by passing a simple statute that purports to change a definition?

  50. avatar
    JoZeppy January 21, 2016 at 1:16 pm #

    Dr. Conspiracy: No wonder arguments over Cruz eligibility result in different outcomes. When there is a dispute over premises, it can only be resolved by an appeal to authority, and the only authority that can resolve it is the Supreme Court fully briefed on the question of presidential eligibility.

    That pretty much sums it up…..and as much as I loath Trump, I would jump on the opportunity to argue this in the courts.

  51. avatar
    ballantine January 21, 2016 at 4:25 pm #

    JoZeppy: Because there is no evidence, you resort to the common law definition.That is a rather well accepted principal of interpreting undefined terms in the Constitution.WKA gave us a common law definition, and that definition has never been seriously challenged.We also have a good amount of case law that has used born, native, and natural born interchangeably.The case law has also stated pretty clearly you are either born or naturalized a citizen.The Constitution grants the legislature a power to pass Naturalization statutes.You have the context of Rogers v. Bellie and the outright statement in Justice Black’s dissent.On the opposite side, you have the suggestion, entirely unsupported by anything actually in the law, that the Legislature has the power to change a definition in the Constitution, effectively changing how the Constitution functions (since it unquestioned that without a statute, neither Cruz or McCain would even be citizens)circumventing the amendment process.

    I would argue this is an unprecedented extra-constitutional power, akin to Parliamentary Sovereignty, with no support anywhere in the law.And I would further argue, that any such power to fundamentally change how the Constitution functions needs a pretty solid basis in the law, not merely the absence of a probation of such power.You should not be able to do indirectly what you can’t do directly.Congress can’t amend the Constitution on its own, why should it then have the power to alter by passing a simple statute that purports to change a definition?

    I don’t think it is true that there is no evidence. We have a multitude of early authority on the subject and it all almost looks to the common law definition. Accordingly, based on actual evidence usually used by originalists, the common law would be the definition as such is where the evidence points. Anyone putting forth another definition, such as a “citizen at birth” needs to explain why the focus was almost solely on the common law.

    If one does argue that we need to look to English law for a broader definition of “natural born,” then we should also look to the English definition of “naturalization.” Either we looked to English law or we did not. Under English law persons could be both “natural born” and “naturalized” as parliament had the power to make persons natural born through naturalization. It isn’t amending the Constitution if it originally intended to define “naturalization” in accordance with English law to grant Congress the same naturalization power as Parliament. Such theory would explain the 1790 statute, but has little other evidence to support it. But neither does the “citizen at birth” theory. The former theory at least is consistent with English law which presumably was the basis of our law.

  52. avatar
    Dr. Conspiracy January 21, 2016 at 5:21 pm #

    I’m going back through Lynch v. Clark (1844) carefully.

    One thing jumped out immediately. Vice-chancellor Sandford says that De Natis is declaratory of the “old common law.” He also says that citizenship by birth is not provided for by the Constitution or the Congress. For the qualifications he looks to the conditions for citizenship of the states at the time the Constitution was consummated.

    Another curious statement says in effect: IF the common law rule applies THEN Julia Lynch was a native born citizen. There was never any question of WHERE Lynch was born–she was born in New York. So why is her status as a NATIVE born citizen contingent on the common law? Here’s the citation:

    “Such being the rule of the common law, in the absence of express legislation, the difficult question is presented for decision; is the common law in this respect, the law of this state, or of the United States? If it be the law here, then Julia
    Lynch was a native born citizen, and inherited the property in controversy…”

    ballantine: I don’t think it is true that there is no evidence. We have a multitude of early authority on the subject and it all almost looks to the common law definition.

  53. avatar
    JoZeppy January 21, 2016 at 5:38 pm #

    ballantine: I don’t think it is true that there is no evidence. We have a multitude of early authority on the subject and it all almost looks to the common law definition. Accordingly, based on actual evidence usually used by originalists, the common law would be the definition as such is where the evidence points.Anyone putting forth another definition, such as a “citizen at birth” needs to explain why the focus was almost solely on the common law.

    If one does argue that we need to look to English law for a broader definition of “natural born,” then we should also look tothe English definition of “naturalization.”Either we looked to English law or we did not.Under English law persons could be both “natural born” and “naturalized” as parliament had the power to make persons natural born through naturalization. It isn’t amending the Constitution if it originally intended to define “naturalization” in accordance with English law to grant Congress the same naturalization power as Parliament. Such theory would explain the 1790 statute, but has little other evidence to support it.But neither does the “citizen at birth” theory. The former theory at least is consistent with English law which presumably was the basis of our law.

    But why should we look to the English law at all? As Minor, and WKA, and many other sources have said, when trying to define undefined terms in the Constitution, we resort to the Common Law. We have a common law definition as spelled out in WKA. The fact that the English also had to pass statutes to naturalize those born abroad lends support to the concept that strictly on the basis of the common law. The problem with equating the power of Parliament with that of the Congress is the concept of Parliamentary sovereignty. The two just aren’t equal. Furthermore the 1790 statute’s lack of any legislative history leaves us totally in the dark (just like their use of the term’s use in the Constitution). All we know is that they passed it, then quickly changed it dropping the NBC term. And as Marbury v. Madison showed us, temporal proximity to the ratification of the Constitution is no guarantee that the Congress will act within its Constitutional boundaries (one could argue the exact opposite as the learn to adjust from a system where the legislature is supreme to one that is bound by check and balances and bound by a Constitution).

    Now all I need is a retainer agreement from the Trump campaign, and I’m ready to go!

  54. avatar
    ballantine January 21, 2016 at 5:58 pm #

    Dr. Conspiracy:
    I’m going back through Lynch v. Clark (1844) carefully.

    Don’t have time to read the case, but I think you would need to look pretty hard to find anything that supports a definition of natural born other than the common law:

    “The Constitution of the United States, like those of all the original states (and in fact, of all the states now forming the Union, with the exception of Louisiana,) presupposed the existence and authority of the common law. The principles of that law were the basis of our institutions. In adopting the state and national constitutions; those fundamental laws which were to govern their political action and relations in the new circumstances arising from the assumption of sovereignty, both local and national; our ancestors rejected so much of the common law as was then inapplicable to their situation, and prescribed new rules for their regulation and government. But in so doing, they did not reject the body of the common law. They founded their respective state constitutions and the great national compact, upon its existing principles, so far as they were consistent and harmonious with the provisions of those constitutions.”

    “In my judgment there is no room for doubt, but that to a limited extent, the common law, (or the principles of the common law, as some prefer to express the doctrine,) prevails in the United States as a system of national jurisprudence. To what extent it is applicable, I need not hazard an opinion, either in general terms or in particular instances, beyond the case in hand. But it seems to be a necessary consequence from the laws and jurisprudence of the colonies and of the United States under the articles of confederation; that in a matter which, by the Union, has become a national subject, to be controlled by a principle co-extensive with the United States; in the absence of constitutional or congressional provision on the subject, it must be regulated by the principles of the common law, if they are pertinent and applicable.”

    “It is a necessary consequence from what I have stated, that the law which had prevailed on this subject, in all the states, became the governing principle or common law of the United States. Those states were the constituent parts of the United States, and when the Union was formed, and further state regulation on the point terminated, it follows, in the absence of a declaration to the contrary, that the principle which prevailed and was the law on such point in all the states, became immediately the governing principle and rule of law thereon in the nation formed by such union. If there had been any diversity on the subject in the state laws, it might have been difficult to ascertain which of the conflicting state rules was to become, or did become, the national principle. And if such diversity had existed, it is reasonable to believe that the framers of the Constitution would have borne it in mind, and enacted a uniform rule, or authorized Congress to establish one. The entire silence of the Constitution in regard to it, furnishes a strong confirmation, not only that the existing law of the states was entirely uniform, but that there was no intention to abrogate or change it. The term citizen, was used in the Constitution as a word, the meaning of which was already established and well understood. And the Constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “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.” The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen.”

    “Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.”

    I do not believe that case anywhere says anyone but persons born on the soil are natural born. All the states adopted the common law. Virginia adopted a citizenship statute, but no case law in Virginia called persons “natural born” other than persons born in Virginia. Sanford actually talks about the Virginia statutes and didn’t say they altered the common law definition.

  55. avatar
    RanTalbott January 21, 2016 at 8:08 pm #

    JoZeppy: I know what Justice Black thought, but he only articulated that opinion in a dissent, so I can’t say that is the law.

    It’s also in the majority opinion of WKA, with an explicit reference to the kind of “Americans born abroad” statute Cruz is relying on. If his case had gone before that Court, it definitely would have ruled him “naturalized”.

  56. avatar
    Dave B. January 21, 2016 at 10:01 pm #

    Have a look at page 248:
    http://tesibria.typepad.com/whats_your_evidence/lynch_v_clarke_1844_ocr.pdf
    and at page 249, where Sandford refers to “the adoption of both of the rules of the common law.”

    ballantine: Don’t have time to read the case, but I think you would need to look pretty hard to find anything that supports a definition of natural born other than the common law:

  57. avatar
    Rickey January 22, 2016 at 12:24 am #

    JoZeppy: That pretty much sums it up…..and as much as I loath Trump, I would jump on the opportunity to argue this in the courts.

    I suspect that Trump would love to have this argued in the courts, but he doesn’t want to be the person to get it started. That’s why he challenged Cruz to file a declaratory action. If Cruz took the bait and filed one, he would have to name Trump as a party, and then Trump could say “Cruz started this, and now I need to have my lawyers respond.”

  58. avatar
    Dr. Conspiracy January 22, 2016 at 7:49 am #

    I’m not looking to find something that says the children of citizens born overseas are natural born citizens, but I am looking to understand how Sandford views the common law as controlling, and whether he defines naturalization, or says anything else interesting.

    What Vice-chancellor seems to be arguing is that upon adoption of the Constitution, the citizens of the states became citizens of the United States, however they had become citizens of the states (Comity clause). He then showed that those born in the country were citizens under all state law whether that state law was the common law or statute. He they says that the moment the Constitution went into effect (or perhaps when the 1790 Act was passed) that the states no longer had any say in who was a citizen, and specifically argues that the common law of the states no longer governed citizenship. That last is because the common law of the states can be altered by the states, and if they were to make such alteration citizenship would no longer be uniform in the country.

    This leads me to question the immutability of the definition of natural born citizen. Some argue here that the criteria of the English Common Law of birth with the legiance of the King makes one a natural born subject is an immutable principle, immune from the alteration of Congress. However, it is a well-established principle that the statutes of Parliament override the common law, and Sandford says that state statutes override the common law in a state. It is one thing to say that Congress cannot override the Constitution. It seems to me a different thing to say that Congress cannot override the common law, and effectively change the effect of the Constitution when it itself is silent on an issue, but leaves the question to the common law.

    I see the courts, lacking any definition of citizenship on the Constitution, resorting to the common law; however, this is a resort by the courts, not a claim that the Constitution was intended to define citizenship. Indeed Sandford said:

    ballantine: Don’t have time to read the case, but I think you would need to look pretty hard to find anything that supports a definition of natural born other than the common law:

  59. avatar
    Dr. Conspiracy January 22, 2016 at 8:17 am #

    So in the Colony of New York, the legislature in July of 1715 passed an act creating natural born subjects.

    Statute of the Colony of New York, July 1715:

    “…all and every person and persons, Foreigners, of what Nation Soever, Professing Christianity, that at any time hereafter shall come and arrive within the Said Province, with an intent to become his Majesties Subjects, and to dwell, Settle, and Inhabit accordingly, and shall …Such persons may be Naturalized by Act of Assembly, and from thenforth shall in all respects be Accounted, Deemed, and Esteemed as his Majesties Natural Born Subjects, and shall have and enjoy all Such Privileges, ffreedomes and Immunities within this Province, as other his Majesties Subjects have and enjoy.”

    Here persons are both naturalized and natural born.

  60. avatar
    Scientist January 22, 2016 at 8:32 am #

    Dr. Conspiracy: This leads me to question the immutability of the definition of natural born citizen.

    It obviously is NOT immutable. At the time the Constitution was ratified, First Nations people were not citizens. They were made citizens (and thus natural born citizens, if born in the US, whether on a reservation or not) by acts of Congress. And of course, slaves in states where they were freed by legislative acts became not only citizens, but natural born citizens (as long as they were born in the US (as virtually all were).

  61. avatar
    Dr. Conspiracy January 22, 2016 at 9:00 am #

    Well, I found something that suggests Sandford thought that Ted Cruz is a natural born citizen under the common law. He takes note of the law of 1802 which removed the provision of the Acts of 1790 and 1795 that the children of citizens born overseas are citizens. Then he says:

    “With regard to the act of 1802, I do not think that the child of our citizens born abroad, are aliens. … 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. The statute, 25 Edward III., St. 2, De natus ultra mare, appears to have been declaratory of the old common law. In Dyer’s Reports, 224, a, note, it is said to have been adjudged in the king’s bench in 7th Edward III, that children of subjects born beyond the sea, in the service of the king, shall be inheritable: and that this was resolved in Parliament in the 17th Edward III. The fact of being in the king’s service, does not import being in his dominions or within his ligeance. It was Lord Bacon’s opinion that the act was declaratory of the old common law. Mr. Reeves says it was made to remove some doubt which was entertained about the denization of children born of English parents out of the kingdom. (2 Reeves’ Hist. of the English Law, 400.) In Bacon v. Bacon, Cro. Car., 601, two of the judges, Croke and Brampton, held that by the common law, a child born in Prussia of English parents, was a denizen, entitled to inherit and a liege subject. Berkeley J. said it was rather by force of the statute 25 Edward III. In Doe dem. Thompas v. Acland, 2 B & C., 779, 790 to 793, Ch. J. Tindal says, that this was so by the common law, and to that effect he cites Hussey Justice in 1 Rich. 3, 4. Parke, Justice, in the same case, says that the 25 Edward III., was a declaratory. (And see 22 Hen. 6, 38, per Newton, J.) Chancellor Kent appears to entertain he same opinion (2 Kent’s Comm. 50, 51, 2 ed.)

    “If such were the common law, it was in force in the colonies, and was one of the rights which the citizens of the United States retained and still hold under the constitution. The provisions in the acts of 1790, 1795 and 1802, to secure these rights to children born abroad, were in this view, a superabundant caution.”

    ballantine: Don’t have time to read the case, but I think you would need to look pretty hard to find anything that supports a definition of natural born other than the common law:

  62. avatar
    Dr. Conspiracy January 22, 2016 at 9:40 am #

    Continuing from Lynch v. Clarke, showing that the exclusive classes of citizen are natural born and naturalized, and that naturalized only applies to those who were not born citizens:

    “The same assumption in regard to citizenship by birth, is to be found in the statute of Pennsylvania regulating elections, passed February 15, 1799. In order to prove his right to vote, the elector is to take an oath, 1. That he is a natural born citizen of the state, &c. 2. Or that he is a natural born citizen of some other of the United States &c. Or 3. That having been a foreigner or alien, he has been naturalized.”

  63. avatar
    ballantine January 22, 2016 at 11:07 am #

    Dr. Conspiracy:
    Well, I found something that suggests Sandford thought that Ted Cruz is a natural born citizen under the common law. He takes note of the law of 1802 which removed the provision of the Acts of 1790 and 1795 that the children of citizens born overseas are citizens. Then he says:

    “With regard to the act of 1802, I do not think that the child of our citizens born abroad, are aliens. … 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.”

    Good find Doc. However, this is a well known argument generally based upon dicta by Hussey. Such argument was rejected by almost all significant English scholars and hence was very much a minority view in England.

    There is little evidence that such theory had much support in this country as there are nearly no references in early legal authorities stating the common law included jus sanguinis or our naturalization statutes were unnecessary. For example, Jefferson said:

    “Q. The state of the father draws to it that of the son.

    Ans. In Villenage it does, but in no other case at the Common law. Thus a Natural subject having a son born in a foreign state; the son was an alien at the Common law. The stat. 25.E.3. st.2. first naturalized him if both parents were, at the time of his birth, natural subjects; and 7.Ann.c.5. and 4.G.2.c.21. where the father alone was. So an Alien in England having a child born there, that child is a natural subject. A denizen purchases land. His children born before denization can-not inherit, but those born after may. The state of the father then does not draw to it that of the child, at the Common law.”

    I believe Kent called such theory “dormant and doubtful” and Binney said it was just wrong. The Supreme Court would state on multiple occasions that Binney was correct and there is a long line of case law that the foreign born are aliens without the benefit of statute. I don’t think it is likely the court will reverse all this law on a theory it rejected long ago.

  64. avatar
    Dr. Conspiracy January 22, 2016 at 11:12 am #

    New article at Salon.com:

    Ted Cruz has a very real birther problem: The law is not settled — but the history is

    Authors Burstein and Isenberg say: “It is a historical fact (and a fact of law) that mothers did not possess the same right as fathers did to grant their children American citizenship when the child was born outside the United States. This is important.”

  65. avatar
    Scientist January 22, 2016 at 11:49 am #

    Dr. Conspiracy:
    New article at Salon.com:

    Ted Cruz has a very real birther problem: The law is not settled — but the history is

    Authors Burstein and Isenberg say: “It is a historical fact (and a fact of law) that mothers did not possess the same right as fathers did to grant their children American citizenship when the child was born outside the United States. This is important.”

    Doc: This is really a very bad piece of writing. First “jus joli”? Repeated twice. Second, the fact that in the past women were subordinate shouldn’t make Cruz’s situation any different than it would be if it had been his father who was born in the US and his mother in Cuba. If we take the status of women in 1790 or even 1890 as our guide, then Hillary and Fiorina are ineligible. Third, Cruz didn’t need to get a US passport to be a US citizen. Suppose he never left the country and didn’t get a passport, would he not be a citizen?

    Finally, they provide no real support for their contention that the purpose of the natural born restriction was attachment to the soil, rather than preventing a representative of a foreign state, particularly a European royal from becoming President. And that raises the question as to when attachment to soil really develops. Would someone with American parents born in Niagara Falls, NY have a greater attachment to US soil than if his parents had popped across to Niagara Falls, ON, birthed him and brought him back the next day? Hardly. I don’t know about you, but in my first year of life, my attachments were to my parents and my blanky. Soil, not so much.

  66. avatar
    Dr. Conspiracy January 22, 2016 at 1:31 pm #

    If we are to look to the English Common Law (or English practice) to determine who is a “natural born citizen” then it seems that we should also look to the English Common Law for a definition of naturalization. “A Dictionary of American and English Law” by Rapalje and Lawrence (1997) highlights the difficulty with these definitions of “naturalization”:

    1. This takes place when a person becomes a subject or citizen of a state to which he was before an alien.

    4. The term “naturalization” is also sometimes applied to the operation of law by which the children and grandchildren born abroad of natural-born subjects or citizens are themselves natural born subjects or citizens “to all intents, constructions and purposes.”

  67. avatar
    Dr. Conspiracy January 22, 2016 at 1:39 pm #

    Mr. Boyd gives definitions of “naturalization” in the “Cyclopedia of Law and Procedure“(1901) p. 110.

    For one, he cites Vattel: “A nation, or the sovereign who represents it, may grant to a stranger the quality of a citizen by admitting him into the body of the political society. This is called naturalization. Vattel L. Nat., bk. I c 19 §§ 212-214.”

  68. avatar
    y_p_w January 22, 2016 at 5:41 pm #

    Personally I feel “naturalization” is a strange way to describe what isn’t a natural consequence of birth. I’ve noted that some refer to naturalization laws that can even make someone a natural-born citizen.

    However, conferral of citizenship doesn’t quite have the same ring to it.

  69. avatar
    y_p_w January 22, 2016 at 5:52 pm #

    bob: It is isn’t exactly the same (Puerto Rico is a U.S. territory, Canada is not; birth status would be governed by different subdivisions of section 1401), but, yes, issues about Cruz’s eligibility is closer to Thomas’ “evasion” than it is to issues about Obama’s eligibility.

    Puerto Rico gets its own section (8 USC 1402).

    https://www.law.cornell.edu/uscode/text/8/1402

    All persons born in Puerto Rico on or after April 11, 1899, and prior to January 13, 1941, subject to the jurisdiction of the United States, residing on January 13, 1941, in Puerto Rico or other territory over which the United States exercises rights of sovereignty and not citizens of the United States under any other Act, are declared to be citizens of the United States as of January 13, 1941. All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth.

    In fact it was better written than the law for the Panama Canal Zone. That was unclear on who (born to at least US citizen parent) would be a citizen at birth or a citizen declared as such at the time the law went into effect.

    There’s a separate section for Alaska, Hawaii, the Canal Zone, USVI, and Guam.

  70. avatar
    gorefan January 23, 2016 at 12:02 am #

    Another Salon article:

    http://www.salon.com/2016/01/22/this_is_the_ted_cruz_birther_dilemma_hes_certainly_an_american_but_natural_born_is_a_real_question/?utm_source=twitter&utm_medium=socialflow

    “A skill all lawyers need to develop is the ability to distinguish between a real legal argument and a fake one. A real legal argument isn’t necessarily a winning argument: rather, it’s an argument that could be expected to have some actual chance of winning the day, given various (realistic) assumptions regarding whatever authority figures will end up deciding whether the argument is right or wrong.”

    “Arguments that Barack Obama wasn’t constitutionally eligible to be president were always fake legal arguments through and through, because there was never the slightest possibility that any federal court was going to accept such an argument. The reason no court would even consider those arguments is that they were all based on an obviously false, and indeed classically paranoid, claim: that Obama wasn’t born in Hawaii.”

  71. avatar
    James M January 23, 2016 at 12:55 am #

    gorefan: The reason no court would even consider those arguments is that they were all based on an obviously false, and indeed classically paranoid, claim: that Obama wasn’t born in Hawaii.

    This statement demonstrates ignorance of Donofrio and the Vatellists.

  72. avatar
    gorefan January 23, 2016 at 2:14 am #

    James M: This statement demonstrates ignorance of Donofrio and the Vatellists.

    I should have included this next paragraph.

    “The argument that Marco Rubio isn’t eligible to be president because his parents weren’t U.S. citizens at the time of his birth– a lawsuit making this argument has just been filed in Florida – is also a fake legal argument. There is essentially no support for this position in American law. It’s the kind of claim, in other words, that can subject a lawyer to sanctions for bringing it. (Orly Taitz, the most indefatigable of the Obama “birthers,” was fined $20,000 by a federal court for bringing a similarly ridiculous claim).”

  73. avatar
    Dr. Conspiracy January 23, 2016 at 7:21 am #

    Which as we know is 100% false.

    gorefan: [Quoting Campos at Salon.com] “The reason no court would even consider those arguments is that they were all based on an obviously false, and indeed classically paranoid, claim: that Obama wasn’t born in Hawaii.”

  74. avatar
    C. January 23, 2016 at 12:50 pm #

    Wouldn’t Wong Kim Ark apply to Rubio’s eligibility? If so he is a citizen yes, just not a natural born citizen as defined in Minor.

  75. avatar
    gorefan January 23, 2016 at 1:41 pm #

    Dr. Conspiracy:
    Which as we know is 100% false.

    Yes, for those who follow the Obama Birthers his statement is not strictly true. But with Orly Taitz as the prime media face of the Birthers, it is not surprising that someone not familiar with the nuances of the OB’s arguments would believe that they are all about the birth certificate.

  76. avatar
    Dr. Conspiracy January 23, 2016 at 1:55 pm #

    Even with Taitz, he misrepresents the cause of the $20,000 sanction Judge Land levied against Taitz in the Rhodes case. He suggests it was for her outlandish views of foreign birth. It was, rather, for bringing repeated motions that had no merit at law, and making baseless ethical complaints against the judge (that he had met with Eric Holder ex parte).

    gorefan: But with Orly Taitz as the prime media face of the Birthers, it is not surprising that someone not familiar with the nuances of the OB’s arguments would believe that they are all about the birth certificate.

  77. avatar
    bob January 23, 2016 at 4:43 pm #

    C.:
    Wouldn’t Wong Kim Ark apply to Rubio’s eligibility?If so he is a citizen yes, just not a natural born citizen as defined in Minor.

    Minor’s dicta is not controlling. Rubio is a natural-born citizen because he was born in the United States.

  78. avatar
    Dave B. January 23, 2016 at 4:50 pm #

    “Natural born citizen” isn’t defined in Minor.

    C.:
    Wouldn’t Wong Kim Ark apply to Rubio’s eligibility?If so he is a citizen yes, just not a natural born citizen as defined in Minor.

  79. avatar
    Notorial Dissent January 23, 2016 at 10:56 pm #

    Once and for all, Minor ONLY deals/dealt with women’s suffrage and citizenship, specifically that they ARE citizens, if born here, and that they couldn’t vote at the time as one thing had nothing to do with the other, but was a creature of state law.

  80. avatar
    Slartibartfast January 24, 2016 at 12:41 am #

    I think that the focus on soil is because, as Madison said, it is the more certain criterion of birth. The legal status of the mother’s blood was not clearly established at the Founding and the father’s identity could never be known with any certainty until recently while where the child was born was generally an objective fact with witnesses.

    Which is moot since I agree with you that the purpose of the eligibility clause was to prevent out-of-work European royalty from taking over the country, not to ensure attachment. The focus on attachment is just a birther straw man—part of the daisy chain of them they need to make their case, just like John Jay’s “strong check” became “super-duper strongest check ever possible ever evah”.

    Scientist: Doc: This is really a very bad piece of writing.First “jus joli”?Repeated twice.Second, the fact that in the past women were subordinate shouldn’t make Cruz’s situation any different than it would be if it had been his father who was born in the US and his mother in Cuba.If we take the status of women in 1790 or even 1890 as our guide, then Hillary and Fiorina are ineligible.Third, Cruz didn’t need to get a US passport to be a US citizen.Suppose he never left the country and didn’t get a passport, would he not be a citizen?

    Finally, they provide no real support for their contention that the purpose of the natural born restriction was attachment to the soil, rather than preventing a representative of a foreign state, particularly a European royal from becoming President.And that raises the question as to when attachment to soil really develops.Would someone with American parents born in Niagara Falls, NY have a greater attachment to US soil than if his parents had popped across to Niagara Falls, ON, birthed him and brought him back the next day?Hardly.I don’t know about you, but in my first year of life, my attachments were to my parents and my blanky.Soil, not so much.

  81. avatar
    Notorial Dissent January 24, 2016 at 6:11 am #

    Slarti, while I agree your point is very, well extremely valid really, but I think it was even simpler and more basic than that, it was what they were used to, it was what ALL of their legal traditions and practices were to that date, and there is really no reason in reality that they would have or should have departed from them. The law of the day declared, and they themselves considered themselves to be natural born Englishmen (subjects) with all the rights and prerogatives thereto. They were born beyond the seas and yet considered themselves to be, and were in fact considered by the laws and traditions of the home country natural born Englishmen will all the rights of their brethren who had never left the shores of the mother country, so there is NO REASON that they would have abandoned that definition when it was so much a part of their very souls. It wasn’t the tea or the taxes that sparked the revolution, it was the sense of the population that they were no longer considered on equal ground with their kinsman in England and in fact had less or no rights in comparison to them. The fact that the new states former colonies adopted almost wholly what was then English common law in to their own legal systems at the founding just adds validity to the claim. The statement that the Federal gov’t had no common law was/is valid, but that is not true for the states, and for the Constitution that created the Federal gov’t, it was based on all that law and tradition that had gone on before, the common law of England and the former English Subjects became US citizens.

  82. avatar
    Dr. Conspiracy January 24, 2016 at 7:53 am #

    And I note that by statute, either explicitly or by reference to the common law, citizenship by place of birth was the law in all of the 13 states. So the legal status of that principle is certain. Congressman Smith (whom Madison was defending) made an argument from Vattel writing:

    The Doctor [Ramsay] says the circumstances of birth do not make a citizen–This I also deny. Vattel says: “The country of the father is that of the children and these become citizens by their tacit consent.” I was born a Carolinian [before the Declaration], and I defy the Doctor to say at what moment I was disenfranchised. The revolution which took place in America made me a citizen, though then resident at Geneva…. There was never a moment when I was a citizen of any other country.

    The authority of Vattel in the country was questionable, but the common law law rule was certain.

    Slartibartfast: I think that the focus on soil is because, as Madison said, it is the more certain criterion of birth. The legal status of the mother’s blood was not clearly established at the Founding and the father’s identity could never be known with any certainty until recently while where the child was born was generally an objective fact with witnesses.