Main Menu

Archive | January, 2016

What have the Gerbils been up to?

I haven’t been over to Birther Report™ for quite a while and I thought I’d better check what the gerbils have been up to. A couple of things are going on.

Mike Volin says that the “Article II Truth Ad Campaign” is collecting money to launch “Internet ads” beginning the last week in January. The ads will “focus solely on the Article II ‘Natural Born Citizen’ requirement and the 2016 ineligible candidates including Barack Obama a.k.a. Barry Soetoro.” There’s PayPal link.

Volin’s Blog Talk Radio show last night featured Charles Kerchner and Mario Apuzzo hosted by Gary Wilmott. The link to the show is here.

While I was poking around at Gary Wilmott’s Give Us Liberty 1776 blog, I saw a curious article: “Nope. Obama was NOT a Constitutional Law Professor.” It links to a fairly stupid article that says in essence that Obama lied when claimed to have taught Constitutional law because he was a not a professor, and therefore he didn’t teach. If one defines “professor” as “the highest rank in a college or university” then President Obama was not one, and never claimed to be one. His position at the University of Chicago Law School was “senior lecturer” and lecturers teach too. Heck, I taught calculus at a university and I was just a graduate teaching assistant. Duh.

Like this blog, the gerbils have many articles related to Ted Cruz. I sometimes get a kick out the ads I see on certain web sites. Here’s one from Birther Report™:



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.


Natural born citizenship and the draft

The Supreme Court in US v. Wong used an argument to demonstrate that Mr. Wong was a citizen, which applied the principle of English Common Law that those born within the allegiance of the sovereign were natural born subjects. Notice that I didn’t say “within the country.” The leading case in English law on this topic was Calvin’s Case and the writing of Lord Coke was considered definitive. The idea of the mutual obligation between subject and sovereign was the basis for the Common Law criteria to qualify as a natural born subject.

James H. Kettner wrote extensively about Calvin’s Case in his book, The Development of American Citizenship: 1608-1870. In a later chapter on “Birthright Citizenship” in the United States, he harkens back to Calvin’s Case and says:

With the single exception of eligibility for the presidency, they [aliens who met naturalization requirements] thereby acquired the same status and rights as native citizens.

But who counted as native citizens? No one appeared to re-examine and justify Coke’s idea of the “natural-born citizen.” Americans merely continued to assume that “birth within the allegiance” conferred the status and its accompanying rights. Natives were presumably educated from infancy in the values and habits necessary for self-government, and there was no need to worry about their qualifications for membership. …

It was not “birth within the territory” but “birth within the allegiance.”

James Madison, a Framer of the Constitution, spoke before the US House of Representatives in 1789 with an argument in favor of the citizenship of William Smith, opening with his “general principles”:

It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.

In an argument on citizenship, Madison begins with “allegiance.” He recognizes the possibility that allegiance may be created through parentage, even though in 1789 US law did not provide for it. When he says that “in general place is the most certain criterion; it is what applies in the United States,” he may have been acknowledging that all of the states granted citizenship, at least to those born within their borders. Under federal law, the children of citizens born abroad were not citizens until the year following Madison’s speech, when the 1790 Naturalization Act made them citizens. Ever since 1790, US law contains a provision granting citizenship to the foreign-born children of our citizens

I assert that the 1790 Act and its successors brought those foreign-born citizens under the allegiance of the United States when it made them citizens, and therefore made then natural born citizens under the criteria of the English Common Law.

If Ted Cruz hadn’t registered for the draft, he would have been guilty of a felony.

I do not see any difference in the allegiance of a person born in the country and the allegiance of someone born its citizen elsewhere. “It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage,” but allegiance is allegiance.


Birther backfire

imageAccording to Politico, Trump’s birther foray may have backfired, resulting in the conservative media jumping to Cruz’ defense. Support came in from

  • Mark Levin
  • Rush Limbaugh
  • Sean Hannity
  • Laura Ingram

Meanwhile, Cruz tries to paint the opposition as “liberal” by dissing Laurence Tribe, whom he called a “major Hillary Clinton supporter.”

Cruz paints the issue as a fake controversy:

At the end of the day, the legal issue is quite straightforward

But it’s not.



I was at the County Library today, and on a whim, I pulled out the Oxford English Dictionary to see of the definition of “natural-born” had changed since my older edition was published. It hadn’t, but while there I looked up another word, “native.” There were two entries for the word, both with multiple definitions.

I didn’t write down the first entry that had at least 9 definitions, some of which refer to where someone comes from. I would say that I am a “native of Alabama” and everyone would understand that Alabama is where I was born.

The other entry is what I though worth copying. First, the derivation originated in the Latin word nativus meaning “produced by birth, innate, natural.” The first definition was:

I. 1. a. Belonging to, or connected with, a person or thing by nature or natural constitution, in contrast to what is acquired or superadded: esp. of qualities which are inherited or innate in a person or thing.

I see all sorts of interpretations of the word “native” in the natural born citizen discussion, and I just want folks to be aware that there are multiple meanings of that word.

For reference, I snapped a photo of the “natural-born” entry.



Updated Congressional Research Service report on presidential eligibility

The question mark floating over the head of Ted Cruz has created quite a stir in the media, and last night during the Republican Presidential Debate in Charleston. Undoubtedly the stir in the media has promoted citizens to contact their elected officials who look to sources like the Congressional Research Service for background information and legal guidance.

The Congressional Research Service released an update yesterday to its 2011 report on presidential eligibility by Jack Maskell, incorporating new material relevant to Ted Cruz (not mentioned by name). Here is the text of the revised “Qualifications for President and the ‘Natural Born’ Citizenship Eligibility Requirement.”

The summary has changed little from the earlier version with Mr. Maskell concluding:

Although the eligibility of U.S. born citizens has been settled law for more than a century, there have been legitimate legal issues raised concerning those born outside of the country to U.S. citizens. From historical material and case law, it appears that the common understanding of the term “natural born” in England and in the American colonies in the 1700s included both the strict common law meaning as born in the territory (jus soli), as well as the statutory laws adopted in England since at least 1350, which included children born abroad to British fathers (jus sanguinis, the law of descent). Legal scholars in the field of citizenship have asserted that this common understanding and legal meaning in England and in the American colonies was incorporated into the usage and intent of the term in the U.S. Constitution to include those who are citizens at birth.

I am glad to see that the revised report takes note of Mr. Dicey’s definition of “natural born subject” cited in the Wong decision, but without doing a line by line comparison, I can’t say much more about what has changed, since the material is rather familiar.

The clear emphasis of the argument is that the strict Common Law criteria of a natural born citizen is not what applies to the Constitution, but rather the Common Law plus longstanding English statutory law. I think Mr. Maskell marshals a strong argument in support of that position, and I am taking that view more seriously that I had before.

My personal opinion is that looking to the English Common Law is not the correct originalist interpretation, but I can hardly fault Mr. Maskell for accurately reporting the majority opinion of authorities and the rather direct findings of the Supreme Court. Disagreeing with those is the privilege of the blogger.

The introduction suggests that additional updates could be made to the CRS report.

Note: Readers who would prefer a direct download link to the report rather than getting it from Scribd, may do so here.