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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.

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44 Responses to Updated Congressional Research Service report on presidential eligibility

  1. avatar
    Sterngard Friegen January 15, 2016 at 4:40 pm #

    Mr. Maskell has, once again, comprehensively dealt with the subject as well as the implications of Rogers v. Bellei. Jus sanguinis citizenship is not compelled by the constitution. I combine Bellei with the Naturalization Act of 1790 to support the argument that while Congress has decided to recognize jus sanguinis citizens, it has not decided (since 1795) to “make” them “natural born citizens.” On that basis I argue that Cruz is ineligible. (Maskell argues at p. 20, fn. 96 that the superseding 1795 Act was merely a stylistic change. Maybe he’s right but it’s a toss up.)

  2. avatar
    Dr. Conspiracy January 15, 2016 at 5:35 pm #

    It’s by no means certain. I spent some time a few years back considering the stylistic change theory, and I was persuaded that the 1795 is a stylistic improvement. My argument against it being a real change is:

    1) If it was a big constitutional faux pas, then why did they wait 4 years?
    2) The guys who passed the 1790 Act were closer to the Constitution than their successors and you would expect that they knew what they were doing.
    3) There’s no record of anyone saying that the NBC language should be changed.
    4) If natural born citizen means born with the nature of a citizen, then there was no change.

    Sterngard Friegen: Maskell argues at p. 20, fn. 96 that the superseding 1795 Act was merely a stylistic change. Maybe he’s right but it’s a toss up

  3. avatar
    Sterngard Friegen January 15, 2016 at 6:30 pm #

    Doc, I’m of the school that legislators know what they say and say what they mean. (At least those geniuses at the time of the adoption of the Constitution and soon thereafter.) If in 1790 they decided to extend “natural born” status to jus sanguinis citizens, and then did not do so thereafter, to me that implies they decided to pull back from their grant. Did something happen during those 5 years? Well, there weren’t very many citizens birthing babies overseas, the country had taken a foothold and looked like it was going to survive, and George Washington, a native born son of Virginia was doing a commendable job as President. Maybe they decided we didn’t need to expand the eligibility pools any more and that we’d do just fine with our own homegrown, native born citizens.

    But this is all speculation. Congress may have decided that all jus sanguinis citizens were “natural born.”

    We’ll never know.

  4. avatar
    Dr. Conspiracy January 15, 2016 at 6:56 pm #

    That argument only works IF you assume that “natural born citizen” means something different from a citizen at birth. If it does not then:

    1) The children of the citizens of Virginia born overseas were already natural born citizens before the 1790 Act.

    2) The 1795 Act made no reduction in the presidential eligibility pool.

    Also remember the Georgia Charter of 1732:

    Also we do for ourselves and successors declare by these presents that all and every the persons which shall happen to be born within the said province and every of their children and posterity shall have and enjoy all liberties franchises and immunities of free denizens and natural born subjects.

    Sterngard Friegen: Doc, I’m of the school that legislators know what they say and say what they mean. (At least those geniuses at the time of the adoption of the Constitution and soon thereafter.) If in 1790 they decided to extend “natural born” status to jus sanguinis citizens, and then did not do so thereafter, to me that implies they decided to pull back from their grant.

  5. avatar
    Dave B. January 15, 2016 at 7:09 pm #

    Just right off hand, I’m seeing a lot of changes in footnotes, and in the way he emphasizes material. For example, he now has “Dual Citizenship and Assertion of Two Citizen-Parent Requirement” as a bold heading on page 42, where he had “Assertion of Two Citizen-Parent Requirement” before on page 44; in that section he’s made the paragraph headings of “Dual Citizenship” and “Citizenship of Parents” more prominent.
    I see what was formerly note 172, which I’ve often used as a reference, is now part of note 181.

  6. avatar
    J.D. Reed January 15, 2016 at 9:01 pm #

    Sterngard Friegen:
    Doc, I’m of the school that legislators know what they say and say what they mean. (At least those geniuses at the time of the adoption of the Constitution and soon thereafter.)If in 1790 they decided to extend “natural born” status to jus sanguinis citizens, and then did not do so thereafter, to me that implies they decided to pull back from their grant. Did something happen during those 5 years? Well, there weren’t very many citizens birthing babies overseas, the country had taken a foothold and looked like it was going to survive, and George Washington, a native born son of Virginia was doing a commendable job as President. Maybe they decided we didn’t need to expand the eligibility pools any more and that we’d do just fine with our own homegrown, native born citizens.

    But this is all speculation. Congress may have decided that all jus sanguinis citizens were “natural born.”

    We’ll never know.

    Well, in the 1790 Congress alumni of the Constitutional Convention were twice as thick as they were in the 1795 Congress. So which merits greater credibility in reference to what the Constitution empowers Congress to do?

  7. avatar
    Slartibartfast January 15, 2016 at 10:31 pm #

    As I said on the Fogbow, Minor v. Happersett says:

    [snip] …the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens.8 These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since.

    Which would seem to support Mr. Maskell’s contention that the change was merely stylistic. Personally, I think that the fact that the First Congress saw fit to grant natural born status through their powers of naturalization combined with the British practice of extending natural born status though statute make a persuasive argument that they favored the “born a citizen” interpretation rather than the “not naturalized” interpretation of natural born. Semantically speaking, of course, we are all “naturalized” either by birth or after birth which introduces a fuzziness that is crystal clear with the “born a citizen” model, but unfortunately semantics aren’t as rigorous in the law as they are in mathematics and I doubt “because it is logically more elegant” is an argument that will fly with most judges…

    Sterngard Friegen:
    Mr. Maskell has, once again, comprehensively dealt with the subject as well as the implications of Rogers v. Bellei. Jus sanguinis citizenship is not compelled by the constitution. I combine Bellei with the Naturalization Act of 1790 to support the argument that while Congress has decided to recognize jus sanguinis citizens, it has not decided (since 1795) to “make” them “natural born citizens.” On that basis I argue that Cruz is ineligible. (Maskell argues at p. 20, fn. 96 that the superseding 1795 Act was merely a stylistic change. Maybe he’s right but it’s a toss up.)

  8. avatar
    gorefan January 16, 2016 at 12:43 am #

    While not completely on topic, this article by Dr. Gerhard Casper deals with the debate over the 1795 Act. Specifically the requirement for the oath of allegiance.

    http://gcasper.stanford.edu/pdf/Forswearing-Allegiance.pdf

    There is also this in the debates over the Act.

    They were debating an amendment to the act that would have forced immigrants with titles of nobility to renounce their titles before they could become U.S. Citizens. Mr Hillhouse of Connecticut believing the amendment did not go far enough, said the following:

    “If we pass the present amendment, the construction must be, that an alien, after residing in this country, abjuring his allegiance to his own, offering to become a citizen of, and taking the oath of fidelity to, the United States, is in the possession of the rights of a privileged order to which he may have belonged; and further that their rights are hereditary, unless he shall, agreeably to the amendment, come forward and renounce them. But what will be the consequences of him not renouncing? Most clearly that he retains and possesses them. A nobleman, then, may come to the United States, marry, purchase lands, and enjoy every other right of a citizen, except of electing and being elected to office. His children, being natural born citizens, will enjoy, by inheritance, his title, and all the rights of his nobility and a privileged order he possessed, an idea which ought not, either explicitly or impliedly, to be admitted. History of Congress, Friday January 2nd, 1795

    IMO, Congressman Hillhouse is saying that a non-naturalized nobleman’s children are natural born citizens.

  9. avatar
    Dave B. January 16, 2016 at 1:22 am #

    There is, alas, an apt description of birtherism in that same debate, which explains why it is immune to a reference like the Hillhouse remarks:

    “…such diseases of the brain were not bred by reasoning and cannot be cured by it.”
    –Rep. Fisher Ames of Massachusetts, January 2, 1795,

    gorefan:
    While not completely on topic, this article by Dr. Gerhard Casper deals with the debate over the 1795 Act.Specifically the requirement for the oath of allegiance.

    http://gcasper.stanford.edu/pdf/Forswearing-Allegiance.pdf

    There is also this in the debates over the Act.

    They were debating an amendment to the act that would have forced immigrants with titles of nobility to renounce their titles before they could become U.S. Citizens.Mr Hillhouse of Connecticut believing the amendment did not go far enough, said the following:

    “If we pass the present amendment, the construction must be, that an alien, after residing in this country, abjuring his allegiance to his own, offering to become a citizen of, and taking the oath of fidelity to, the United States, is in the possession of the rights of a privileged order to which he may have belonged; and further that their rights are hereditary, unless he shall, agreeably to the amendment, come forward and renounce them.But what will be the consequences of him not renouncing?Most clearly that he retains and possesses them.A nobleman, then, may come to the United States, marry, purchase lands, and enjoy every other right of a citizen, except of electing and being elected to office.His children, being natural born citizens, will enjoy, by inheritance, his title, and all the rights of his nobility and a privileged order he possessed, an idea which ought not, either explicitly or impliedly, to be admitted. History of Congress, Friday January 2nd, 1795

    IMO, Congressman Hillhouse is saying that a non-naturalized nobleman’s children are natural born citizens.

  10. avatar
    CRJ January 16, 2016 at 12:35 pm #

    Cruz and Obama were not born under the window of Law between 1790 and 1795. If its Law you seek… and that seems a relevant [Fact]or] Here:

    Let me argue in the #SCOTUS Court about the Laws or Facts [at the TIME of Birth].

    https://twitter.com/CodyRobertJudy/status/688411311407939584

    Go to the bottom of the page where the notes are. Look at number 1. Click on citizenship chart. The asterisks below it explain the laws that were in effect during time of both Cruz’s and Obama’s birth(s).

    Policy Manuel
    http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH-Chapter4.html

    1952-1978 Governing Law
    https://en.m.wikipedia.org/wiki/Immigration_and_Nationality_Act_of_1952

    Derivative Citizenship” chart on gov website
    McCarran Walter act was in effect during that time. Per that law, also known as Public law 414, Cruz was NOT a citizen at birth.

    Section 320: Children born outside the United States of alien parent and citizen parent. Child does not receive US Citizenship unless alien parent naturalizes by time child turns 16.

    There are over 400 sections to that act. That section remained in effect until 1978.

    Ted’s Father, Rafael Cruz obtained Canadian citizenship in 1973 and ultimately became a naturalized U.S. citizen in 2005. Ted was 35 years old.

    Obama’s father never naturalized

  11. avatar
    bob January 16, 2016 at 1:17 pm #

    As it has been explained to Judy numerous times, President Obama is a natural-born citizen because he was born in the United States. Full stop.

  12. avatar
    Sef January 16, 2016 at 3:21 pm #

    CRJ:
    Cruz and Obama were not born under the window of Law between 1790 and 1795. If its Law you seek… and that seems a relevant [Fact]or] Here:

    Let me argue in the #SCOTUS Court about the Laws or Facts [at the TIME of Birth].

    https://twitter.com/CodyRobertJudy/status/688411311407939584

    Go to the bottom of the page where the notes are. Look at number 1. Click on citizenship chart. The asterisks below it explain the laws that were in effect during time of both Cruz’s and Obama’s birth(s).

    Policy Manuel
    http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH-Chapter4.html

    1952-1978 Governing Law
    https://en.m.wikipedia.org/wiki/Immigration_and_Nationality_Act_of_1952

    Derivative Citizenship” chart on gov website
    McCarran Walter act was in effect during that time. Per that law, also known as Public law 414, Cruz was NOT a citizen at birth.

    Section 320: Children born outside the United States of alien parent and citizen parent. Child does not receive US Citizenship unless alien parent naturalizes by time child turns 16.

    There are over 400 sections to that act. That section remained in effect until 1978.

    Ted’s Father, Rafael Cruz obtained Canadian citizenship in 1973 and ultimately became a naturalized U.S. citizen in 2005. Ted was 35 years old.

    Obama’s father never naturalized

    If CRJ is correct and there is no evidence of his naturalization, Cruz is not even eligible to be a senator. This should make for an interesting legal case.

  13. avatar
    CRJ January 16, 2016 at 3:28 pm #

    bob: As it has been explained to Judy numerous times, President Obama is a natural-born citizen because he was born in the United States.

    And as has been explained to @Bob many times as he has poured over the 34th page of my Cert. to the SCOTUS that mentions Cruz half a dozen times..

    page 34 of Judy v. Obama
    https://twitter.com/CodyRobertJudy/status/688456578341580800

    Means the 14th Amendment (birth in the U.S.) was not meant to over rule Art. II.Sect 1, Clause 5.

    I’m reading “2015 U.S. Supreme Court Judy v. Obama Writ Certiorari ” on Scribd. Read more: http://scribd.com/doc/262436958

  14. avatar
    Scientist January 16, 2016 at 3:45 pm #

    CRJ: Section 320: Children born outside the United States of alien parent and citizen parent. Child does not receive US Citizenship unless alien parent naturalizes by time child turns 16.

    You are misinterpreting the law. That is Chapter 2-Nationality through Naturalization. It applies to those who are not covered by Chapter 1-Nationality at Birth

    Cruz would fall under Section 301 (7) ” person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.

    Mrs. Cruz had Ted in her late thirties and lived in the US until a few years before he was born, so it seems she met the residency requirement.
    Section 320 which you quoted would only apply if she failed to meet that residency test.

    No wonder you have done so poorly in your court cases.
    :

  15. avatar
    Dave B. January 16, 2016 at 3:54 pm #

    And if I’m Grace Kelly I’m the Princess of Monaco.

    Sef: If CRJ is correct and there is no evidence of his naturalization, Cruz is not even eligible to be a senator.

  16. avatar
    CRJ January 16, 2016 at 4:06 pm #

    Scientist: It applies to those who are not covered by Chapter 1-Nationality at Birth

    Cruz would fall under Section 301 (7) ”

    Hahaha😂😂😂 you quote a [Naturalization Statute] to defend Ted’s [ natural born Citizen] ship.

    Drinking the Kool-aid huh? 😂😂😂 Cheers Bro🍻

    No.., you know the reasons I have done [ poorly] is because I am poor, haven’t been schooled in the Ivey Leagues, and my net-worth isn’t of the Value of Printing and Filing Fees in SCOTUS.

    The Justices just are not ready to concede the Value between my ears as the Value of Obama’s 10 Trillion on to the National Debt; Billion dollar Campaigns totaled in Obama, McCain, Cruz, Rubio, and Jindal.

    Nor do they want to make a Hero out of a driving range pro,. Lol, with a Record. Not that Record🔑, but the one which is the only Pres Candidate in America with a bi-partisan Federal Court Record for and in defense of NBCtzn.

    http://www.codyjudy.us

  17. avatar
    bob January 16, 2016 at 4:38 pm #

    CRJ:
    Means the 14th Amendment (birth in the U.S.) was not meant to over rule Art. II.Sect 1, Clause 5.

    Judy again fails to understand that no one believes that the 14th Amendment “overruled” the natural-born-citizen clause. No one believes that all citizens are also natural-born citizens.

    The courts have repeatedly and expressly said that birth in the United States is sufficient for natural-born citizenship. Including, notably, one of Judy’s own cases. That Judy chooses to ignore the courts is entirely his own problem, but Judy — like all birthers — again lies when states the incorrect standard for natural-born citizenship.

    CRJ: Hahaha you quote a [Naturalization Statute] to defend Ted’s [ natural born Citizen] ship.

    Drinking the Kool-aid huh? Cheers Bro

    No.., you know the reasons I have done [ poorly] is because I am poor, haven’t been schooled in the Ivey Leagues, and my net-worth isn’t of the Value of Printing and Filing Fees in SCOTUS.

    The Justices just are not ready to concede the Value between my ears as the Value of Obama’s 10 Trillion on to the National Debt; Billion dollar Campaigns totaled in Obama, McCain, Cruz, Rubio, and Jindal.

    Nor do they want to make a Hero out of a driving range pro,. Lol, with a Record. Not that Record, but the one which is the only Pres Candidate in America with a bi-partisan Federal Court Record for and in defense of NBCtzn.

    http://www.codyjudy.us

    It is that kind of word salad that shows why absolutely no one cares what Judy believes. Unintelligible nonsense from an unintelligent nobody.

  18. avatar
    Dr. Conspiracy January 16, 2016 at 4:45 pm #

    A net worth of negative $2,100 puts one in the 10th percentile. Indeed, if you have any net worth at all, you’re better off than 12.85% of Americans.

    CRJ: my net-worth isn’t of the Value of Printing and Filing Fees in SCOTUS.

  19. avatar
    Sterngard Friegen January 16, 2016 at 5:05 pm #

    Slartibartfast:
    As I said on the Fogbow, Minor v. Happersett says:

    Not quite. Minor is quoting the 1790 Act. Since the case doesn’t involve NBC status, when the Court says “These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since” I think the court is considering status as a citizen, not as a NBC. There is no need in Minor to determine who is a natural born citizen because it was conceded Virginia Minor was a citizen (as well as an NBC). Lots of glop in Minor. But the holding is that women don’t have a constitutional right to vote.

  20. avatar
    CRJ January 16, 2016 at 5:13 pm #

    @Doc that’s so true!

    Dr. Conspiracy: if you have any net worth at all, you’re better off than 12.85% of Americans.

    I actually was giving the 170K debt Obama has contributed to by 70K a bit more positive consideration than I should.

    Now, I really feel bad and,

    bob: Unintelligible nonsense from an unintelligent nobody.

    what @Bob said.. dito. I am no body cept CRJ, with a shadow named Bob..lol

  21. avatar
    Dr. Conspiracy January 16, 2016 at 5:59 pm #

    But isn’t the Supreme Court’s rationale in Minor and later in Wong essentially:

    a. The presence of the words “natural born citizen” in the US Constitution implies that the criteria for someone to be a natural born subject in England would make someone born in the US a natural born citizen
    b. Birth in the country makes someone a natural born subject in England
    c. Virginia Minor was born in the country
    d. Therefore, she is a natural born citzen

    and

    a. All natural born citizens are citizens
    b. Virginia Minor is a natural born citizen
    c. Therefore Virginia Minor is a citizen.

    The same argument appears in US v. Wong.

    It is an essential part of both of these decisions that the phrase “natural born citizen” invokes English Common Law, and that the criteria in English Common Law is a sufficient condition to make someone born in the country a natural born citizen; however, since neither Minor nor Wong were foreign born, it was not necessary for the Court to consider whether the English Common Law criteria of a natural born subject was a necessary one for a natural born citizen.

    I might add that I find this confusion over necessary and sufficient conditions pervasive in the discussion of natural born citizen, and even in analysis of what Coke said in Calvin’s case.

    I don’t know how much sense my comment makes to everyone. I’m trained in formal logic, not the law.

    Sterngard Friegen: Not quite. Minor is quoting the 1790 Act. Since the case doesn’t involve NBC status, when the Court says “These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since” I think the court is considering status as a citizen, not as a NBC.

  22. avatar
    John Reilly January 16, 2016 at 6:00 pm #

    Mr. Judy probably has a higher net worth than almost any other convicted terrorist.

  23. avatar
    Scientist January 16, 2016 at 6:10 pm #

    CRJ: Hahaha😂😂😂 you quote a [Naturalization Statute] to defend Ted’s [ natural born Citizen] ship.

    No, I quoted a statute on Nationality at Birth, Chapter 1, section 301. You lose because your arguments are idiotic, poorly reasoned and because you are illiterate.

    CRJ: haven’t been schooled in the Ivey Leagues,

    Your prose reads like you dropped out of middle school.

  24. avatar
    y_p_w January 16, 2016 at 6:41 pm #

    Scientist: No, I quoted a statute on Nationality at Birth, Chapter 1, section 301.You lose because your arguments are idiotic, poorly reasoned and because you are illiterate.

    I have heard of some legal scholars refer to those laws as “naturalization laws” yet assert they could still be used to determine natural born citizenship.

    For instance, INA 301 (a) (8 USC 1401 (a)) actually says that someone born in the United States is born a US citizen.

    §1401. Nationals and citizens of United States at birth
    The following shall be nationals and citizens of the United States at birth:
    (a) a person born in the United States, and subject to the jurisdiction thereof;

  25. avatar
    Sterngard Friegen January 16, 2016 at 6:57 pm #

    Dr. Conspiracy:
    That argument only works IF you assume that “natural born citizen” means something different from a citizen at birth. . . .

    I’m of the school that believes that if the Framers had wanted to say “citizen at birth” that’s what they would have said. (Just as they could have said “with two citizen parents” which was a response to the birthers in 2012.) In my mind “natural born” meant “native born” to them based on the etymology the word “natural” circa 1789.

  26. avatar
    Sterngard Friegen January 16, 2016 at 7:01 pm #

    Dr. Conspiracy:
    But isn’t the Supreme Court’s rationale in Minor and later in Wong essentially:

    a. The presence of the words “natural born citizen” in the US Constitution implies that the criteria for someone to be a natural born subject in England would make someone born in the US a natural born citizen
    b. Birth in the country makes someone a natural born subject in England
    c. Virginia Minor was born in the country
    d. Therefore, she is a natural born citzen

    and

    a. All natural born citizens are citizens
    b. Virginia Minor is a natural born citizen
    c. Therefore Virginia Minor is a citizen.

    The same argument appears in US v. Wong.

    It is an essential part of both of these decisions that the phrase “natural born citizen” invokes English Common Law, and that the criteria in English Common Law is a sufficient condition to make someone born in the country a natural born citizen; however, since neither Minor nor Wong were foreign born, it was not necessary for the Court to consider whether the English Common Law criteria of a natural born subject was a necessary one for a natural born citizen.

    I might add that I find this confusion over necessary and sufficient conditions pervasive in the discussion of natural born citizen, and even in analysis of what Coke said in Calvin’s case.

    I don’t know how much sense my comment makes to everyone. I’m trained in formal logic, not the law.

    I think the court is being sloppy because NBC status doesn’t change anything in the opinion.

    On the other hand, when a legislature fixes on the words to use in a statute, then subject to the canons of statutory construction (at play in the most recent Obamacare decision), the words are all to be given meaning. And when those very words are removed, I think their removal must be given meaning. I call that “subtraction by subtraction.”

  27. avatar
    CRJ January 16, 2016 at 9:24 pm #

    Dr. Conspiracy: a. The presence of the words “natural born citizen” in the US Constitution implies that the criteria for someone to be a natural born subject in England would make someone born in the US a natural born citizen

    Implication does equal Representation

    Only if you assumed that like the [natural born Subject] the [natural born Citizen] could never attain the highest Office [(King) for Subject]- [(President) for NBCtzn or Ctz at the Time of the Adoption of COTUS]

    Also removes [reason] for 14th Amendmnt [born in U.S. ..are Citizens]

    Also removes reason for Qlfct of Representatives [Citizen] Senators [ Citizens ]

    Dr. Conspiracy: b. Birth in the country makes someone a natural born subject in England

    Never able to be King. The differences of King and President are monumental. You literally have to fail to recognise differences to equalize [Subject] and [natural born Citizen]

    POTUS v KING

    1- Elect4 years terms. v. Life Appntmnt or Inherited
    2- Checks&Balances$ v. Dictatorship$
    3- Age Restriction 35yrs. v. Teenager?
    4- Return to Gen. Popultn v. Dies in Office

    POTUS is relatively restrictive of power to the qualified persons in the general population while the Kings position is never even a consideration of Subjects.

    There’s such a great divide between the two highest offices why consider them relative, accept to say they are the highest offices?

    That’s looking from the bottom up.

    Dr. Conspiracy: a. All natural born citizens are citizens

    But-
    Not all Citizens are [natural born Citizen]s
    Citizens can be unnatural Citizens also as is the case with dual Citizens. There exist an opposite.

    This is quite a serious matter when it comes to Governments and jurisdiction. For if Obama is in Kenya his father’s inherited citizenship has or can have prominence and conflicts with protections claimed or asserted by the U.S.A.

    Mexico can’t tell their citizens what to do in Texas if theirs dual citizenship termed unnatural.Texans born in Mexico have a tougher call in calling for protections of the USA when they’re in Mexico. It’s an unnatural divided loyalty often dictated by the Borders the person finds themselves in.

    Charleston P&E quote
    [So there are many Mexicans who have become U.S. Citizens, who can get Mexican passports and vote in Mexico. The are legally, potentially dual citizens; but not so in U.S. Law.

    And here is the difference: When someone infront of a U.S. official renounces all foreign allegience (the requirement for naturalizing as a U.S. citizen) this results in U.S. Law in the new U.S. citizen having no other citizenships. This does not have an effect in the laws of the other nations uniformly; as some do not recognize such a renunciation (e.g. Mexico), some do (e.g. Italy) only if the renunciation is made before an official of their own country.]

  28. avatar
    Scientist January 16, 2016 at 9:53 pm #

    CRJ: [So there are many Mexicans who have become U.S. Citizens, who can get Mexican passports and vote in Mexico. The are legally, potentially dual citizens; but not so in U.S. Law.

    Donald Trump has a claim on British citizenship. Possibly German too…Rubio is out and do we know when Bernie’s father naturalized? You are left with only Hillary as a true American by your lights among viable candidates. That’s where your own statements have left you.

    Which raises the question of why so many with immigrant ties are viable presidential candidates and so few with long roots in the country are. Maybe they are genetically superior to old-stock Americans, maybe the foreign cultures they have ties to stimulated their intellectual development. Either way, you should consider that your viewpoint may result in an inferior class of person in office.

  29. avatar
    RanTalbott January 16, 2016 at 10:22 pm #

    Dr. Conspiracy: it was not necessary for the Court to consider whether the English Common Law criteria of a natural born subject was a necessary one for a natural born citizen.

    But it did, in a limited way: the dicta in WKA say that foreign-born citizens are “naturalized” because they got their citizenship through statute, not common law.

    Rogers v Bellei seems to follow the same principle. Might a court conclude that the Framers meant NBC as “common law + statute”? Yes, but where are the other cases on citizenship rights where it has?

  30. avatar
    Rickey January 17, 2016 at 12:11 am #

    Sef: If CRJ is correct and there is no evidence of his naturalization, Cruz is not even eligible to be a senator. This should make for an interesting legal case.

    CRJ is wrong, of course.Section 320 refers to children born abroad of one alien parent and one citizen parent, but the citizen parent did not meet the residency requirements of Section 301.

    Since Cruz’ mother did meet the residency requirements of Section 301, he was automatically a U.S. citizen at birth.

  31. avatar
    Slartibartfast January 17, 2016 at 12:11 am #

    Stern,

    You’re making an assumption that favors your case (and the emphasis you wish to place on statutory interpretation) and I’m making an assumption that conforms to the interpretation that favors my case (and Mr. Maskell’s). While you may be right on which is legally correct, Doc C and I are correct that it is not logically clear cut and thus there is, indisputably, room for legitimate disagreement. Ultimately, neither your opinion nor mine matters—only the SCOTUS if someone can get them to consider the case. Personally (based on nothing whatsoever), I think they would play hot potato if they got it, call it a political issue and refuse to rule.

    Also, you can tout “natural = native” in the common vernacular of the time, but as I understand it, “natural born” as a term of art from the English common law (which seems likely the way Justice Jay and other lawyers would have understood it) has support from the SCOTUS and was understood to be the common law jus soli as extended by statute in practice.

    This looks like a stalemate to me.

    Sterngard Friegen: Not quite. Minor is quoting the 1790 Act. Since the case doesn’t involve NBC status, when the Court says “These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since” I think the court is considering status as a citizen, not as a NBC. There is no need in Minor to determine who is a natural born citizen because it was conceded Virginia Minor was a citizen (as well as an NBC). Lots of glop in Minor. But the holding is that women don’t have a constitutional right to vote.

  32. avatar
    gorefan January 17, 2016 at 12:29 am #

    Slartibartfast:

    FYI and FWIW, Cruz and his wife traveled to, IIRC, Guatemala to dig water wells with his church. That was before he was a senator and possibly before he was solicitor general.

    I assume it was on a US passport.

  33. avatar
    CRJ January 17, 2016 at 10:26 am #

    Scientist: Donald Trump has a claim on British citizenship. Possibly German too…Rubio is out and do we know when Bernie’s father naturalized? You are left with only Hillary as a true American by your lights among viable candidates. That’s where your own statements have left you.

    That’s exactly what Cruz tried to do in the debate. Exaggerating a position to discredit it is not a rebuttle of the position.

    Cruz told Trump that his mother, in such a extreme Birther position, had to be a natural born Citizen, and he was’nt going to use his mother’s birth against him.

    Truth? He was using his mother’s birth against him in a False Argument.

    Born in the U.S. to Citizen Parents ( natural born Citizen) Minor v. Happersett from SCOTUS Precedent because they first considered her [Citizenship Status] before applying it to the a]location of her voting right to the 14th Amendment.

    You realize immigrants becoming U.S. Citizens Today legally, can have children here in the U.S. qualified to run for Pres. as natural born Citzns.

    Rubio’s children would be qualified. Cruz’s children would be qualified. Being Senators is a great blessing afforded to them as 1st Generationers.

    Sanders , Trump, are qualified. You start at the Time of their birth and simply ask, “Were both their folks U.S. Citizens?

    Their [Trump, Sanders] Parents could be naturalized immigrants.

    Trump correctly told Cruz “it wouldn’t work” and while arguments made in this Blog might work, “Statute Citizenship” are forms of differing Naturalization.

    You want examples of naturalization with [natural born Subjects] they are there to find with children born outside the jurisdiction of the Borders.

    So your argument falls flat accept in mentioning the disrespect for Law of the Gang of 5 Cruz, Rubio, Jindal, McCain, and Obama.

    As far as superior and inferior leadership goes, it’s not about character, it is simply about Time. Born in the U.S. to Citizen Parents is about TIME. That’s it.

    The Framers and Founders knew they hadn’t had that amount of Time, so the [Citizen at the Time of the Adoption of this Constitution] was inserted and agreed upon delegating the qualification to distinquished revolutionary patriot Citizens.

    Of course I have reasoned my considerations with variable contributing facts such as [Citizen] being used for the qualification of Senators and Representatives and honored with the extension of those qualifications being fullfilled Sen. Rubio, and Sen. Cruz. , as well Sen. McCain, and Sen. Obama.

    It’s my personal saddness that through Defacto Pres Obama everyone of us has been sold with an added 70K down the river. Our borders are porous, our population suffering the chains of slavery to debt with less freedom and more dependency, and due to Obama’s ineligibility I’m assured things would be different if he was eligible.

    Of course you can argue qualified Leadership doesn’t trump unqualified Leadership. You can argue there is and would be no difference in Leadership between Jesus and Lucifer. That is what you’re argueing.

    I thing there is a big difference as much as there is anyway in Love and Hate. , Hot and Cold, Dependence and Independence. Much more progress is made with the opportunities of Freedom and Liberty than can be made in Prison.

    Some really don’t think so they are satisfied in Prison but I know there is much more accomplished out.

    Some reason 3 squares and a cot isn’t all that bad. I think of the wonderful opportunities that dreaming, working hard to fullfill your dreams, and eating the fruit of your labor are.

    There is a difference in the USA. You are free to call it by many different names. You can call it valueless, you can call it principled; you can call it liberal, conservative, but it is in all Unique.

    For all of that Uniqueness a lot of sacrificing has been made to propel us forward. But into what is the question? Into chains of dependency, a Loss of sovereignty? A division of derision?

    Our UNION must Stand. Out Future in God’s Hands. My Prayer is in God’s Ears. God Bless the USA. We are the Beacon of Light for all to see. We must Stand for Freedom and Liberty. Against the Tyranny, Tyrant and Traitors for the Hope of better Tomorrows. By the Principles of our Foundation that in Time have proven good, and by the Patriots of yesterday we have firmly stood. That rich and poor, we have among us, but to them all we offer Truth and Justice.

  34. avatar
    Dr. Conspiracy January 17, 2016 at 1:08 pm #

    I have no problem equating natural with native–courts did it all the time. What I object to is equating native with “born here” when there are other definitions that seem more appropriate.

    We would say, “a natural born musician has a native talent for music.” Neither one has any relationship to place of birth, but of a talent, status, position or ability present at birth and not acquired later. I think that’s the usage that the courts used when conflating natural and native.

    Slartibartfast: Also, {sterngard] can tout “natural = native” in the common vernacular of the time, but as I understand it, “natural born” as a term of art from the English common law (which seems likely the way Justice Jay and other lawyers would have understood it) has support from the SCOTUS and was understood to be the common law jus soli as extended by statute in practice.

  35. avatar
    Northland10 January 17, 2016 at 2:02 pm #

    Scientist: Your prose reads like you dropped out of middle school.

    If only he was like the students I had that failed middle school. They never turned in writing assignments so it was much easier reading than CRJ’s. Unfortunately, his prose is meant as an attention getting device. He can’t misbehave on the internet like he could in as close, so he has to babble on with endless word salads. Facts matter far less than his need for attention.

    Great to see you back Scientist.

  36. avatar
    Dr. Conspiracy January 17, 2016 at 2:20 pm #

    Off hand I don’t know if that is in Wong or not.

    Chief Justice Taft in Ex Parte Grossman said specifically that it was not only the English Common Law that should be referenced:

    “The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted.

    Natural born subject was common law + statute.

    I think one might as well read tea leaves as Rogers v. Bellei. Neither was intended to answer the question we are asking.

    RanTalbott: But it did, in a limited way: the dicta in WKA say that foreign-born citizens are “naturalized” because they got their citizenship through statute, not common law.

    Rogers v Bellei seems to follow the same principle. Might a court conclude that the Framers meant NBC as “common law + statute”? Yes, but where are the other cases on citizenship rights where it has?

  37. avatar
    Dr. Conspiracy January 17, 2016 at 2:32 pm #

    While I consulted US v. Wong numerous times on the topic of the citizenship of President Obama because of the similarity of the questions involved, I had not looked at it specifically on the question of Cruz eligibility, because Cruz was not born in the US. However, here is something I found in US v Wong of interest:

    “But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, “citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,…”

    and

    “mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;”

    and

    “children born in a foreign country, of a French father who had not established his domicil there nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by “a favor, a sort of fiction,” and Calvo, “by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality.” Pothier Trait des Personnes, pt. 1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant, (1802) 3 Journal du Palais, 384; S.C., S. Merlin, Jurisprudence, (5th ed.) Domicile, § 13; Prefet du Nord v. Lebeau, (1862) Journal du Palais, 1863, 312 and note; 1 Laurent Droit Civil, no. 321; 2 Calvo Droit International, (5th ed.) § 542; Cockburn on Nationality, 13, 14; Hall’s International Law, (4th ed.) § 68. The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799. Constitutions et Chartes, (ed. 1830) pp. 100, 136, 148, 186.”

  38. avatar
    Dr. Conspiracy January 17, 2016 at 2:49 pm #

    I call attention to a paper by Horace Binney, cited by the Supreme Court in US v. Wong, “The Alienigenæ of the United States Under the Present Naturalization Laws.” This paper contains the perhaps familiar quotation:

    The child of an alien if born in the country is as much a citizen as the natural horn child of a citizen and by operation of the same principle.

    What I did not know was that citation is a footnote to the discussion of the citizenship of foreign-born children of US citizen fathers in the 1790 Naturalization Act. And contrary to what I have said, that the citizenship of the children of citizens born overseas has been a part of US Law since 1790, Binney says otherwise, citing a period from 1802 until the time he wrote his paper (1863) when such children were aliens.

    The paper addresses at length the question of whether the children of subjects born abroad was intended under the English Common Law, concluding that it was not.

    Another point from Binney that I totally missed, is that the 1790 Act did not, as I have often said, grant citizenship to only the children of US citizen fathers. It granted it to the children of citizens, with the addition that the Father must have resided in the United States.

  39. avatar
    Dr. Conspiracy January 17, 2016 at 3:25 pm #

    First, I think that it is not fair to say that words were “removed,” when in fact the entire act was repealed and replaced.

    Second, it is also a legal principle that the acts of the First Congress are given special weight on constitutional interpretation. The Act of 1795 does not carry this weight.

    The authority Horace Binney whose paper on alienage was cited by the Supreme Court in US v. Wong, said in that same paper:

    This Act [the Act of 1790] was wholly repealed by the Act of 29th January, 1795, 2 U.S. Laws, 496, sec. 4 ; but the third section of the Act re-enacted the clauses of the Act of 26th March, 1790, above referred to, in the same or precisely equivalent terms.

    Sterngard Friegen: On the other hand, when a legislature fixes on the words to use in a statute, then subject to the canons of statutory construction (at play in the most recent Obamacare decision), the words are all to be given meaning. And when those very words are removed, I think their removal must be given meaning. I call that “subtraction by subtraction.”

  40. avatar
    Scientist January 17, 2016 at 9:30 pm #

    CRJ: Assorted nonsense.at mind-numbing length

    You entirely missed my point. Nothing to do with eligibility (about which, frankly, I don’t care). I was merely remarking on the fact that of the top candidates in each of the 2 major parties, 4 of 5 have at least one immigrant parent (Sanders, Trump, Cruz and Rubio). Only Clinton does not. That’s 80%-way out of the percentage of the population with immigrant parents, And the current President, of course. That’s quite remarkable. Maybe it’s telling us something about how people with a worldly background are in a good position to lead in this complex world.

  41. avatar
    y_p_w January 19, 2016 at 1:27 am #

    I was looking up Canada’s 1947 citizenship law, and noticed something that I didn’t see in US citizenship laws, which was the death of the father before birth. For a Canadian father who dies before the birth of the child, they consider the date of birth for citizenship purposes to be the date the father died.

    I’m not quite sure how US interpretation would be regarding the death of the father. Is a dead man still considered a US citizen for the purposes of his child’s citizenship? And if he dies, and (let’s say) he’s still in the United States, does his time while dead count towards physical presence? There’s nothing in the law that says the father has to be with the mother at the time of birth.

  42. avatar
    Dave B. January 19, 2016 at 3:37 am #

    Well, under 8 US Code Sec. 1101(c),
    “As used in subchapter III—
    (2) The terms “parent”, “father”, and “mother” include in the case of a posthumous child a deceased parent, father, and mother.”

    For a little exposition from the State Department,
    http://www.state.gov/documents/organization/86762.pdf

    Status as a dependent under the proviso of Sec. 1401(g) ends with the death of the parent whose service to the United States activates the proviso.

    y_p_w:
    I was looking up Canada’s 1947 citizenship law, and noticed something that I didn’t see in US citizenship laws, which was the death of the father before birth.For a Canadian father who dies before the birth of the child, they consider the date of birth for citizenship purposes to be the date the father died.

    I’m not quite sure how US interpretation would be regarding the death of the father.Is a dead man still considered a US citizen for the purposes of his child’s citizenship?And if he dies, and (let’s say) he’s still in the United States, does his time while dead count towards physical presence?There’s nothing in the law that says the father has to be with the mother at the time of birth.

  43. avatar
    BillyBob January 20, 2016 at 6:26 pm #

    Dear Dr. Conspiracy,
    You stated,

    “Another point from Binney that I totally missed, is that the 1790 Act did not, as I have often said, grant citizenship to only the children of US citizen fathers. It granted it to the children of citizens, with the addition that the Father must have resided in the United States.”

    Thank you for your research, can you please give reference for the previous?

    Thanks, BillyBob

  44. avatar
    y_p_w January 21, 2016 at 4:05 pm #

    BillyBob:
    Dear Dr. Conspiracy,You stated,

    “Another point from Binney that I totally missed, is that the 1790 Act did not, as I have often said, grant citizenship to only the children of US citizen fathers. It granted it to the children of citizens, with the addition that the Father must have resided in the United States.”

    Thank you for your research, can you please give reference for the previous?

    Thanks, BillyBob

    http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=227

    And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

    The rest of the act included references to “free white persons” regarding naturalization, so you can take that for what it is.