I have nothing against “originalism,” the judicial view that the Constitution should be interpreted as it was interpreted by those who ratified it way back in 1788, or the contemporaries of its amendments. (I’m open to arguments against the idea.) What I consider bogus is the particular argument being made today, that under the originalist position, Ted Cruz is not eligible to be president.
Here is a very skeletal version of the originalist argument:
- Birthright citizenship under the Constitution is established by the appearance of the words “natural born citizen” in the Constitution. That is, one can infer that anyone who is a “natural born citizen” is a citizen.
- Natural born citizen is a legal term derived from the English Common Law term “natural born subject.”
- Under English Common Law, only persons born within the territory of England were natural born subjects.
- Therefore only persons born within the territory of the United States are natural born citizens.
Here are my objections to this argument.
The Constitution does not define citizenship
I do not think that the Framers of the Constitution ever intended that birthright citizenship in the United States was established by the Constitution. I say that for two reasons. First, it would seem to me that if that were their intent, then there would have been a section in the Constitution (as there are in constitutions of other countries) that said plainly: “the Citizens of the United States are ….” All we have is the words on presidential eligibility that presume that there were already natural born citizens. Attorney General Edward Bates said this in his Opinion on Citizenship (1862):
The Constitution itself does not make the citizens, (it is. in fact,made by them.)
James Madison, a principal author of the Constitution, said in a debate over the citizenship of Congressman Smith in 1789:
It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us; but since this has not been the case, let us settle some general principle before we proceed ….
That is, citizenship in the United States was principally defined by the states, not the Constitution, and further when no state statute informed the citizenship of Smith, Madison looked not to the Common Law, but to “general principle.”
Can we actually read the minds of the Founding Generation?
I do not know any text explaining how any Framer of the Constitution understood the term “natural born citizen” much less what a consensus view was, if indeed there even was a consensus view. Given the fact that the English Common Law and English statutes in 1789 had differing qualification of a “natural born subject” I see no justification for concluding that any particular Framer or Ratifier understood one over the other. Some Framers were lawyers, but some were farmers. The court cases we have on citizenship seem to derive only from what lawyers may have thought, and early American lawyers appealed the Common Law when it was all they had. The paucity of statues and authorities does not mean that the Common Law was the intended source.
Dictionary readers might have thought that the term just meant someone was born a citizen [under state law].
Does the English Common Law really define “natural born subject” by place of birth?
While most authorities cite Lord Coke’s opinion on Calvin’s Case for a definition of “natural born subject” there is a respectable minority who would argue that the principle of the recognition of rights of infants born to English subjects abroad is so ancient as to be considered part of the Common Law.
Limiting the definition of “natural born citizen” to the English Common Law is unjustified
The Supreme Court has said on numerous occasions that interpreting terms in the US Constitution requires reference to
- The English Common Law
- English institutions at the time of ratification
- English statutes at the time of ratification
To focus solely on the English Common Law, while tossing aside English Statutes that called subjects born abroad “natural born subjects” is a rather arbitrary decision.
Conclusion
The historical record is insufficient to support the originalist argument. We really don’t know who the Framers would have considered eligible to be president, or even if they would agree among themselves. There can be no doubt that those born citizens in the country are natural born citizens, since the basic provisions of the English Common Law were in force in all of the 13 original states. What we cannot know is whether the Framers intended to restrict eligibility to the home born, or whether their views included the foreign-born children of citizens. We cannot know that the Framers intended that Congress be unable to do what Parliament had done in creating new “natural born” subjects by statute.
Doc said-“I have nothing against “originalism,” the judicial view that the Constitution should be interpreted as it was interpreted by those who ratified it way back in 1788, or the contemporaries of its amendments. (I’m open to arguments against the idea.)”
Let me argue against the idea by first quoting a Founder (though not a Framer). Jefferson wrote often that one generation cannot bind another, that laws and Constitutions should expire after 19 years. http://student-of-life.newsvine.com/_news/2010/11/21/5502595-thomas-jefferson-supported-rewriting-the-constitution-every-19-years-equated-not-doing-so-to-being-enslaved-to-the-prior-generation-what-do-you-think-about-that
I would say 19 years is perhaps a bit too short a time, but 225 years with the same Constitution is far too long. Every other country’s constitution, as far as I know, is much newer than that. The answer, some say is to amend. But look at the amendments in the last 100 years-prohibition and repeal, presidential term limits, DC electors. Only the vote for women and perhaps the vote for 18 year olds were significant to people’s lives (prohibition was also but it was repealed) and those could have been done by statute.
You can’t look at the mess in Washington and not conclude that an ossified government structure is partly to blame. So, yes, I argue against originalism and say that the Constitution must serve the people, not the reverse.
Scientist makes some good points.
Personally, I think this is the core of the matter, if one tries to approach it from an originalist position.
English institutions and statutes at the time of ratification included children born of citizens overseas, and they also included:
* a strong precedent that Parliament had the authority to define rules for inclusion of children born abroad in the category of those who were “natural born,” and
* a general precedent that anyone born a citizen was included in the category of “natural born” subjects or citizens.
The open thread, she has died the ignominious death.
I think our “friend” Nokensmehr was quoting me when he said:
I never suggested the grandfather clause was pointless. It was there for a very specific reason. Making George Washington eligible was not it.
Pardon me if I didn’t recite the long litany of evidence to support the accepted understanding of the grandfather clause. It has been gone over many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many times over the past 5 years or so at this site. I excuse you your ignorance.
Perhaps you should read the entire site, including all of the comments, and then come back. It gets tedious to go over a massive amount of evidence for the 19th or 27th time.
I refer you to the archives.
Suffice it to say, you know nothing of the subject. But like all birthers, in your abject ignorance you imagine yourself to be a great authority, and those who’ve been discussing and analyzing the subject for years, and have heard every nuance of every argument, to be utter fools. You likewise imagine yourself a greater authority on the law than legal scholars, Constitutional Law professors, and the accumulated wisdom of 227 years of deliberation in the United States Supreme Court. Those of us who’ve been around for a while frankly laugh at your ignorance.
And your ignorance is manifest. You wear it on your sleeve. One only has to go so far as your quoting David Ramsay as an authority on citizenship in order to know that you know literally nothing of what you speak. Ramsay, who was b*tch-slapped into oblivion by the First Congress, which was full of Signers of the Constitution, including the one universally known to history as the “Father of the Constitution,” the man who wielded the very glove that politely b*tch-slapped Ramsay flat onto his butt.
And you quote Ramsay as if he were an authority. Faugh.
Something should be taken from the facts that..
1. Until Obama no one had been President that had only one citizen parent.
2. Likewise, no one had been President that had been born outside of the country.
One could say that it is just a coincidence, but would it be the same if you looked at all the people who ran for President, regardless of winning, and the Vice Presidents?
There is also evidence to be gained from what people said, and even governed, showing that, even in the days as early as the founding, some followed English common law when it came to citizenship and others followed something different that was contradictory to what was found in English common law.
1. Is a non-fact. Chester Arthur’s father was not a US citizen when Chester was born.
So, what should be taken is that when you say something is a fact, that means it isn’t.
John Fremont. the first Republican nominee for President was born in South Carolina to an American mother and a French father who never became a citizen, always intended to return to France and was preparing to do so imminently when he died. Throughout the entire campaign, no one raised that as an issue.
In more recent times, Mitt Romney’s father, George Romney, was born in Mexico and Lowell Weicker was born in France and both ran for the Republican nomination.
There are likely others.
But the entire point is utterly ridiculous. None of the following have yet been President yet all are eligible: a woman, an Asian, a person with 2 black parents, a Jewish person, a First Nations person, a Muslim, a Hindu, someone conceived by in vitro fertilization. I could go on, but even you may have gotten the point by now.
You are a lying liar and nothing more. Good day, sir,
You’re wrong again.
Chester A. Arthur was born in 1829. His father, William Arthur, didn’t become a U.S. citizen until 1843.
http://law.marquette.edu/facultyblog/2009/10/14/president-chester-a-arthur-and-the-birthers-1880%E2%80%99s-style/
I never claimed him to be of “authority”. Yet he was there, during the time and as such he likely knows more about anything during that time than we do. What was it that he was “bitch slapped” over? I actually was going to say, or maybe I did and forgot that I didn’t delete it, that someone would say such a thing (as usual) to completely discredit something that goes against their vision. By this point it’s something that is to be expected.
Furthermore, why should I trust such a site to contain anything that should be trusted and considered factual after what I’ve seen already?
Depends on who you’re talking about…
In the case of African Americans and/or Slaves it’s quite complicated as there is no one single answer. The citizenship that was granted to African Americans with the ratification of the Fourteenth Amendment in 1868 was clear and unambiguous. Free blacks were given a somewhat partial citizenship in some northern states where they could vote and hold property. Unfortunately, any kind of citizenship that they had prior to 1857 ceased after the Dred Scott decision which specifically established that all African slaves (and their descendants) could never be citizens and had no citizenship rights. The Emancipation Proclamation in 1863 freed the slaves in the Southern states, but ultimately it was the Thirteenth Amendment in 1864 that outlawed slavery completely, but none of that even conferred right of citizenship. The Civil Rights Act of 1866 and the 14th Amendment ratified in 1868 granted citizenship to all persons born or naturalized in the United States… If you even want to call it citizenship with all the racial discrimination that basically treated them as second-class citizens. All in all it probably wasn’t until the Civil Rights Act of 1964 where I’d say they were citizens.
In the case of Mr. Smith and George Washington it would be on the day of the Declaration of Independence when they ceased to be British subjects and became US citizens.
Yep, I was going to mention him as an exception, but sadly there’s no definitive proof. You could say the proof lies in the fact that there conveniently is none, but you’re more than welcome to dig through ashes to try figure it out.
I think both of you need to learn what facts are. Something suspected, but never proven is not a fact. I don’t doubt you’re wrong, as I believe it myself, but when there’s no proof there’s no proof.
I doubt that many countries share the US’s fawning reverence for their (own) constitutions. The US Constitution is NOT a sacred document to be treated as holy writ, found carved on stone tablets or inscribed on golden plates. It is very good – generally – so modifying it requires more care than the routine affairs of government. But considered change should be possible and practicable, which it is not now.
A good recent example of different approaches was in the matter of same sex marriage. In the US, it required the Supreme Court to reinterpret the constitution in the light of modern morality. Whatever one’s opinion of the Supreme Court, that was a judicial rather than a democratic decision, which seems an unsatisfactory route (regardless of whether one is pro or anti SSM).
In Ireland – a much, much smaller country without the complication of separate state and federal systems – the constitution clearly forbade SSM so a proposed change went to a full referendum of the electorate and passed, fully establishing the democratic legitimacy of the change. That also had the side-effect of emphasizing the gap between the people’s views and those of the Roman Catholic church, so the bishops couldn’t denigrate the change as a nasty anti-church fix by evil people.
There are certainly things that, with time, just have to be changed because of unforeseen results or circumstances. But that doesn’t mean it all should be that way. I don’t see, or foresee, any reason as to why citizenship requirements would need to change with the exception of residency maybe or if, for some reason, we start living beyond 150-200 years old lol. And what of the right to bear arms?
Of course it’s proven. Naturalization is recorded in court documents and Arthur Sr.s was in 1843.
You wanna argue about Fremont too?
Anyway, to repeat, the whole “there’s never been a President who was X, so there never can be” is idiotic, as are those arguing that.
Okay, Mr. “Lying Liar” where’s the proof?
Also, am I arguing about Fremont? =/
“The state of Vermont didn’t begin receiving birth records until 1857, according to state archivist Gregory Sanford. The birth records at the Town of Fairfield go back no further.”
I didn’t even need this information to know you’re wrong. I’ve looked into this before.
It was a judicial decision, but there is no question in my mind that the Court was influenced by the shift in public opinion. The same was true of Brown vs Board of Education. In 1896, the Court ruled segregation was OK in Plessy vs. Ferguson. What changed in the intervening 60 years? There was no pertinent constitutional amendment. What changed was public attitudes.
You are confused. The records of Chester Arthur Sr. ‘s naturalization do exist and it happened in 1843. So, unless you want to claim Chester Jr. was born after that (which I doubt you do), his father was not a US citizen when he was born. The issue of place of birth is separate and not really relevant to your question regarding Presidents with non-citizen parents. Chester Arthur, whether born in the US or Canada, had a non-citizen father. Case closed.
Yep, I was confused. Though I refer to his father as William Arthur.
Good for you. But whatever you call him, Arthur, Sr. was NOT A CITIZEN when his son the President was born. Nor was Fremont’s father. Nor was Obama’s.
So your argument that there is no precedent for a President with a non-citizen parent is clearly wrong. Completely and utterly wrong, You can duck and try not to address that if you like. I don’t really care, because your opinions have no weight of law. The argument was made in court dozens of times regarding Obama and has a perfect losing record. Those on Rubio will meet the same fate, There is a small chance that the Cruz case could come out differently, but you’d have to give me at least 10-1 odds for me to even think about taking the bet.
Cool story. I chose to not mention Arthur because in the past it had been a dead end and you criticize everything I said completely when it was only that one thing. Good job.
I would, however, like to mention that in both of those cases they lied about their citizenship and it wasn’t until much later that we discovered otherwise.
When it comes to Obama and the others they have ALL had their past and citizenship made public knowledge long before any vote was ever cast. It’s much different when we cast votes and elect someone that was thought to have been born to two citizen parents.
Not so. Arthur was never asked whether his father naturalized. The allegations regarding the site of his birth were thoroughly investigated by Arthur Hinman, a prominent New York lawyer, who wrote a book claiming Arthur was born in Canada. There is not a word regarding the fact that Arthur’s father had not naturalized, despite the fact that naturalization was a matter of public record in the same Vermont courts where Hinman looked for evidence regarding place of birth. Nor did any opponent raise the issue.
There simply is no requirement regarding parental citizenship for those born within the US, nor was there ever. Period. End of story. No further discussion needed. There are legitimate issues with Cruz, though the chances of any body, whether a court or Congress, ruling him ineligible are extremely remote, but Rubio, despite his totally canned performance last night is unquestionably eligible (though you are welcome to raise whether 35 should include mental, as well as chronological, age).
No, you are the liar. Chester A. Arthur never lied about his citizenship, or that of his father.
In fact, it is a reasonable inference that opposition lawyer Arthur P. Hinman was well aware of the fathers naturalization status because he shows research in his book into the question of whether a foreigner naturalizing in the United States would make a foreign-born child a natural born citizen (Hinman held the theory that Arthur was born in Canada). Here’s the relevant citation from Hinman’s book, which wouldn’t be available on the Internet if I hadn’t tracked it down and scanned it.
Naturalization of the father is exactly the circumstance in the Arthur family.
Even Teddy Roosevelt knew that Arthur was born a British subject, writing in his book, “Fear God and Take Your Own Part”
I might add that the minority in Bellei said that the rule on expatriation was being changed because of a change in the composition of the Court.
Naturalization is a court proceeding, whereas a birth is not. I think you would do well to start over from scratch, as you have a fairly faulty view of the things you talk about.
That’s an interesting find and argues against Cruz, at least as opinion was in 1881. However, I see nothing wrong with opinions changing in 135 years.
In science, for more than a millennium, the writings of Aristotle and Galen were privileged over actual empirical observations. That didn’t work out so well. I see no reason that regarding the opinions of dead writers as the last word on legal topics would work out any better.
Took me a whole 5 seconds to find: https://naturalborncitizen.files.wordpress.com/2008/12/william-arthur-naturalization.pdf
Maybe it’s because I haven’t had my coffee yet, but…
Everyone’s reacting to point #1. Is our friend Kenley actually claiming in #2 that Obama was not native born, and is no one disagreeing?
If I’m right about that, let me be the first. I disagree. Barack Obama was born in Honolulu.
Sure you were.
You, sir, have quickly turned into a flim-flam artist and a liar. You should quit and go away.
Imagine the Founders feel about the same way as to their work.
In the interest of not having to read this entire Blog to rehearse the [grandfather] clause, perhaps we should just refer to recent comments as Application?
7 years is the new 19 in our fast paced world?
@DOC
[What I consider bogus is the particular argument being made today, that under the originalist position, Ted Cruz is not eligible to be president.]
If Ted Cruz has been a [Citizen] distinguished Revolutionary Patriot at the Time of the Adoption of this Constitution he would have been. Per ART. II. Section 1, C-5.
Traitors and Tyrants were more easily spotted with an all out Revolutionary War going on. , and those who had fought, shed blood, who were there were granted qualification in [Citizen] at the Time of the Adoption of this Constitution.
Citizen under the new Jurisdiction U.S. Constitution or Supreme Law of the Land.
doc: “we cannot know that the framers intended that congress be unable to do what parliament had done in creating new “natural born” subjects by statute.”
we don’t know … ? i’ve never done more than skim the legalese but it appears to me that the founders expressly empowered congress to at least expand (a la 14th amendment) if not completely change the law.
Not only but also, Frémont’s parents were adulterers. His father had escaped prison in Canada before finding his way to to Virginia and being hired by his mothers husband to tutor her. I don’t know what he was supposed to be tutoring her in but they had an affair, were discovered, and ran away. They were never married, but lived together IN SIN!
Quel scandale
Frémont himself had a distinguished career including as Governor of the Territory of Arizona, where he has several statues and at least one street named after him (in Tucson).
Vice President Curtis was born in the Kansas territory before statehood.
I wouldn’t denigrate Ramsay’s expertise; if I recall correctly, he wrote an important history of the Revolution. The two things against Ramsay are:
1) He was the person who lost to Congressman Smith in the election, and his paper was written as advocacy in favor of his challenge.
2) Ramsay’s position was almost unanimously rejected by Congress.
Ah, but that presumes that the word “native” refers to someone born in the country. Today the US Census Bureau classifies everyone born a citizen as a “native citizen.” This is also a valid historical usage. In Minor v. Happersett, the court distinguished two classes of persons at birth:
– natives or natural born citizens
– aliens or foreigners
And before anyone makes the claim to knowing this material, I should point out that I spent hours pouring over the microfilm copies of the New York newspaper coverage of the Garfield-Arthur campaign and even the accounts of Mr. Hinman’s investigations. I read the biography of Arthur, Gentleman Boss.
See for example my two articles:
http://www.obamaconspiracy.org/2008/12/the-mysterious-mr-hinman/
http://www.obamaconspiracy.org/2009/04/chester-a-arthur-rest-in-peace/
I was the one who obtained an original copy of Hinman’s book: How a British Subject Became President of the United States. I scanned it and published the only copy on the Internet available at the time. (The copy at Scribd was copied from me.) I even made a public domain audio book of it:
https://librivox.org/how-a-british-subject-became-president-of-the-united-states-by-arthur-p-hinman/
Apparently William Arthur’s naturalization document was among the Arthur papers that he burned before his death. Funny how they just popped back into existence.
Also an important street in Las Vegas. And a city in California.
Ramsay certainly lived during the Revolution. In fact, I think we can go much further than that, and count him as being among the Founders of our country. Now he wasn’t one of our most important leaders, in contrast with the likes of Washington, Jefferson, Madison, Hamilton, Morris, Sherman, Jay, etc., but he did serve a significant role as one of the best contemporary historians of the American Revolution.
And before it was all done, Ramsay certainly knew what the consensus view of our most important early leaders was regarding citizenship.
The fact that you even ask the question shows you know nothing of your subject. I refer you to the archives of this site. Here’s a starting point, from back in 2012:
http://www.obamaconspiracy.org/2012/02/was-george-washington-a-natural-born-citizen-2/
Why should you “trust” this site? You shouldn’t. No one is asking you to “trust” anything. I’m asking you to become informed, instead of imagining you are.
You could also look up “Dunning-Kruger” while you’re at it. It’s not at all uncommon for people who know nothing about a subject to imagine that they’re authorities, and that people who know far more than they do don’t know what they’re talking about.
Of course, if you’re like about 90+% of birthers (and there’s no sign so far of you being the slightest bit different) you’re completely unteachable, because you think you know it all already, and I’m totally wasting my breath.
As has been pointed out, point #1 is plainly false. And point #2 is plainly false as well, since there’s not the slightest genuine evidence that Obama was born anywhere other than Hawaii – as testified on numerous occasions by the official Vital Statistics record-keepers of that State.
Allegations don’t constitute evidence, unless there is some reason for them to be believed. I can easily allege that you robbed the local bank, that you’re President Obama’s secret lover, or that you raped my grandmother at knifepoint.
I presume none of the above are true. Although I haven’t talked to my grandmother lately, and I don’t know the President personally and haven’t asked him about you, so I can’t be entirely sure.
Now, going back to #1: Even if it were true, so flipping what? Scientist said it best:
See, Kinley, this (Dr. Conspiracy’s expertise with Hinman/ Arthur, referenced below) is the level of expertise you are up against.
That’s on just one very obscure point: The claims and ginned-up controversies regarding President Chester A. Arthur, and Arthur Hinman’s attempts to discredit him.
And it’s not just Dr. Conspiracy, as extensive as his knowledge and expertise is.
You want to talk about the law? This forum is crawling with actual lawyers. Every significant case bearing upon the meaning of “natural born citizen,” from the United States Supreme Court on down, has been discussed here in great detail.
You want an analysis, or at least meaningful commentary, on any significant birther case ever brought? It’s here. And there have been more than 200 birther cases.
You want detailed analyses of the birther claims that Obama’s PDF is a “forgery?” Members of this forum, including experts in computer technology, have been over literally every technical detail, and it was members here who correctly identified the source of the reported “anomalies” as being the image-processing functions of the Xerox WorkCentre office machine.
Want to talk about Vattel? One of the members here is a French lawyer who’s worked professionally with Vattel’s works in their original language.
As I suggested before: Read the entire site, all 7 years’ worth.
http://www.obamaconspiracy.org/features/archives/
Or at least read the portions that relate to the historical, legal and Constitutional definition of “natural born citizen:”
https://www.google.com/?gws_rd=ssl#q=%22natural+born+citizen%22+site:obamaconspiracy.org
Then, when you know something, come back and talk to us.
Or at least don’t imagine in the meantime that you have the slightest clue. Because you don’t.
Charles Evan Hughes was the Republican Parties candidate in the 1916 Presidential election. His father was a British subject when he was born in 1862.
He lost to Woodrow Wilson in one of the closest elections ever. He lost California by 3800 votes out of 1 million total votes cast. Those 13 electoral votes would have changed the outcome of the election.
Oh yeah, I forgot about that.
Certainly Frémont Street in Lost Wages is a much more significant street than Frémont Avenue in Tucson which is chopped into 3 disjoint segments, 1 of which has a 90 degree ‘bend’.
I thought the California city was named after a different Fremont. Learn something new everyday!
My objection with originalism is that I don’t believe the founders themselves believed that their original intent should last forever. If they had, they would not have allowed the Constitution to be amended in the first place.
Do you supposed that Kinsley will now acknowledge that Chester Arthur’s father was naturalized in 1843?
I, for one, am not holding my breath.
I’d add: 3) Ramsay’s ‘Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen” never uses the term “natural born citizen”, nor mentions the natural-born citizen clause in any other words. It discusses the citizenship requirements for the House and Senate; it considers the Article II grandfather clause; and it notes the Article II residency requirement. The NBC clause is conspicuously absent.
From Dr. C’s Article:
“I do not know any text explaining how any Framer of the Constitution understood the term ‘natural born citizen’ much less what a consensus view was, if indeed there even was a consensus view.”
Absolutely. Apart from John Jay’s letter to George Washington with the word “born” underlined, and the text of the Article II clause itself, we have nothing from the Framers on the meaning of Constitutional use of the term.
I think the Article II grandfather clause had an under-appreciated effect: It ensured that no case similar to Cruz’s could come up for the first 35 years after the adoption of the Constitution. Our discussions of the meaning of the Article II term are overwhelmingly motivated by particular candidates. Similarly, the quotes we have from the founders on “citizen”, such the one from Madison in the article above, were motivated by individual cases.
Does “natural-born citizen” in the sense of Article II mean more than citizen from birth? No case could bring up the question until the framers’ generation had effectively died off.
Nice observation.
And once the Framers’ generation had died off, no one could ask them exactly what they meant.
You ignore my just-recently-announced and obviously authentic record of the debate among the Committee of Eleven that came up with the wording.
I agree. The originalist looks to the original public meaning which should include any use of the term. I think the court has focused on the common law so often that most of the undefined terms are ancient common law terms that they didn’t think they needed to define. However, some terms came from the English bill of rights and I would think some other statutes as well. Some terms and concepts din’t come from England at all. I think the problem with a lot of originalists is they don’t know what to do when they don’t really have evidence of what the original public meaning was. Speculating what such generation might have thought without much actual evidence seems to not be a serious way to interpret the constitution.
You are hitting on another difficult point for originalists. Should legal terms of art be given their legal meaning or their literal meaning that an average person might think it means. No easy answer but the Constitution and our statutes are full of legal terms of art and it would be difficult not to give such terms their legal meanings.
One can speculate what people reading a dictionary might think. Such is why most courts look to actual contemporaneous authority explaining what the term means. authority that is read by the public and is evidence of what the term is understood to mean.
John Charles Fremont has streets named after him all over the United States. There are streets named after him in the following cities: Reno, Nevada; Casper, Wyoming; Chicago, Illinois; Minneapolis, Minnesota; River Falls, Wisconsin; Kiel, Wisconsin; Bridgeport, Connecticut; Manhattan, Kansas; Grant City, Staten Island, New York; Tempe, Arizona; Tucson, Arizona; Springfield, Missouri; Klamath Falls, Oregon; Portland, Oregon; Crawford, Nebraska; Fremont, California; Monterey, California; Seaside, California; Stockton, California; San Mateo, California; San Francisco, California and Santa Clara, California.
The rivalry trophy between Nevada and UNLV is actually called the Fremont Cannon.
He was a Senator from California, when California became a state, and was defeated in his re-election because of his strong opposition to Slavery.
He is quite a remarkable man.
That’s assuming he comes back
I share your concerns about Originalism but I think you are overlooking its one redeeming feature. Anyone who uses this technique always gets the result they want. For example, the birthers wanted to show that Obama was ineligible for the office of president and, thanks to de Vattel, were able to do so. Likewise, those who wanted to show that Obama was eligible were, thanks to Blackstone, able to do so. Finally, those who want to show that Cruz is eligible for the office have been able to convince the media that it is so. I should add that I am being facetious here.
If I may, I would like to give a non-Originalist argument about the meaning of the phrase “natural born citizen”. My purpose is not to persuade but to demonstrate what it might look like if I had the time and the resources to do it.
The answer one gets to a question depends on what the question is. For the Originalists, the question is who would have been eligible for the office of President in 1788. However, whether the candidate was a “natural born citizen” did not arise because he was grandfathered in by the phrase “a Citizen of the United States, at the time of the Adoption of this Constitution”.
I think a more relevant question is who is eligible for the office of President in 2016. Does this make a difference? I think it does because what is alleged to have prompted all the research into the late 18th century concepts of citizenship is the lack of definition of citizenship in the Constitution of 1787. I don’t think we have that problem in 2016.
The first sentence of the 14th Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” In other words, a citizen of the United States is either (a) a person born in the United States or (b) a person naturalized in the United States. Regardless whether there was a definition of “citizen” in Constitution prior to the adoption of the 14th Amendment, after its adoption, this is the definition in 2016.
What this means is a “natural born citizen” must either be (a) a person born in the United States or (b) a person naturalized in the United States. The person must be one or the other because if either class of citizens were eligible for the office, then the words “natural born” would be surplusage and “citizen” would be sufficient. In other words, if both (a) and (b) citizens were eligible for the office of President, then we would have deleted the words “natural born”. I think amending the Constitution is, or should be, a little more complicated.
While I do not pretend to know what the Founding Fathers were thinking, I believe that to allow only naturalized citizens to be president and hold citizens born in the United States to be ineligible would be perverse. True, Alexander Hamilton might be for it but the rest of the Founding Fathers might be less enthusiastic. Given the choice, I think the Founding Fathers (and we) would prefer citizens born in the United States to be eligible and naturalized citizens ineligible. The use of the word “born” certainly suggests that to me.
Does this make any sense? Is it consistent with the decisions of the courts? I realize that it has one fault which is often fatal. From my reading, people are more easily convinced by stories than by reasoning. The Originalists have interesting (hi)stories to tell involving real people doing real things while the above is pretty dry and dull. On the other hand, “keep it simple, stupid” is always a good idea.
There is one matter which came up when I was doing this that raises an issue regarding Ted Cruz that I had not thought of before. The obvious argument for his ineligibility is that he is a naturalized citizen. Some proponents have argued that because he is a naturalized citizen at birth, he is a “natural born citizen” and therefore eligible. What struck me here is the requirement in the 14th Amendment that a person be “naturalized in the United States, and subject to the jurisdiction thereof”. If Cruz were naturalized at birth, then he would have been naturalized in Canada which is not in the United States and he would not have been subject to the jurisdiction of the United States, but that of Canada. While I have not claim to have followed the controversy closely, I don’t think I have ever seen that objection before. Am I right?
New WAPO article – Tribe v. Balkin is Cruz eligible.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/06/tribe-v-balkin-on-whether-ted-cruz-is-a-natural-born-citizen/
Balkin’s got a link to the videos in his February 6 blog entry:
http://balkin.blogspot.com
https://www.youtube.com/watch?v=YQo02gM0scU&list=PL3rRzTebZFAgOYS7ZR3GgvSsA5Ddz6Fha&index=1
Kind of an odd debate. You’ve got Tribe, who says he thinks Cruz would probably be eligible but an originalist wouldn’t think so, debating Balkin, who says as an originalist he thinks Cruz is eligible.
I think you are making a fundamental error, which is to conclude that because the 14th Amendment says (a) and (b) are citizens that (c) cannot be citizens as well. That would be like saying dogs and cats are pets, so hamsters cannot be. There is a third category of citizen, which are those like Cruz, born outside the US with a US citizen parent who meets certain statutory requirements of having resided in the US for a given time.
The courts have ruled that such people are certainly citizens, but that they are also not covered by the 14th Amendment, since they are neither born in the US nor naturalized in the US. So was he a born citizen (eligible) or a citizen naturalized at birth in Canada (ineligible). After reading the arguments by those on both sides, I find myself unable to decide with any degree of confidence. Therefore, it seems one must revert to the default, which is that a candidate is eligible unless proven otherwise. Since I do not see it as possible to prove otherwise, I must conclude Cruz is eligible.
Man, do I hate that interpretation– I know it still stands, but I think it’s mighty weak law to assert that not all those naturalized BY the United States, but only those naturalized IN the United States are “covered by the 14th Amendment.”
Take an alien child or spouse of a member of the US armed forces, to whom Congress has extended the option of being naturalized by the statutory naturalization process outside the United States. By merely choosing the alternative foreign location, would that person also be “not covered by the 14th Amendment,” with constitutional protection inferior to that afforded to someone choosing to be naturalized inside the United States?
There is the power of Congress to determine a “uniform rule of naturalization”. I’ve even heard it described by some as not necessarily stating that a “rule of naturalization” can’t make someone a natural-born citizen. I frankly don’t like the word, since it includes “natural” in it. I prefer the term “conferred citizen”.
Unlike natural born citizen, the word IN is pretty unambiguous. My understanding is that the spouses of US citizens stationed abroad can apply from overseas and be approved without living in the US, but that they must come to the US for the exam and oath, so the actual naturalization occurs IN the US. For foreign adoptees, I believe they are only naturalized when they arrive in the US.
https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter4.html
I hope I am interpreting the policy correctly.
I frankly don’t care for the position that someone made a US citizen by an act of Congress can’t be considered a natural-born citizen. Congress is able to determine who isn’t a US citizen by way of laws, and has passed laws that determined who loses US citizenship and under what conditions.
So in a way, if someone renounces US citizenship, does that really change whether or not one is still a natural-born citizen via “natural law”? Because it’s “positive law” that specifies the conditions under which someone loses “US citizenship”. I’m not saying I agree with this position, but there are those who claim that “positive law” means nothing with regards to natural-born citizenship. Also – if one is required to have two US citizenship parents, how does it follow that the child of naturalized citizens is a natural-born citizen, since that’s “positive law” that created the US citizenship of the parent(s). If you can’t trace 100% of your lineage to those who were citizens at the time of the adoption of the Constitution, then would that make them a natural-born citizen, since “positive law” was part of the equation?
Well, the dissenting justices in Rogers v. Bellei sure seemed to think it was ambiguous enough. Justice Black:
“The majority opinion appears at times to rely on the argument that Bellei, while he concededly might have been a naturalized citizen, was not naturalized “in the United States.” This interpretation obviously imposes a limitation on the scope of the Citizenship Clause which is inconsistent with the conclusion expressed above that the Fourteenth Amendment provides a comprehensive definition of American citizenship, for the majority’s view would exclude from the protection of that Clause all those who acquired American citizenship while abroad. I cannot accept the narrow and extraordinarily technical reading of the Fourteenth Amendment employed by the Court today. If, for example, Congress should decide to vest the authority to naturalize aliens in American embassy officials abroad rather than having the ceremony performed in this country, I have no doubt that those so naturalized would be just as fully protected by the Fourteenth Amendment as are those who go through our present naturalization procedures. Rather than the technical reading adopted by the majority, it is my view that the word “in” as it appears in the phrase “in the United States” was surely meant to be understood in two somewhat different senses: one can become a citizen of this country by being born within it or by being naturalized into it. This interpretation is supported by the legislative history of the Citizenship Clause. That clause was added in the Senate rather late in the debates on the Fourteenth Amendment, and as originally introduced its reference was to all those “born in the United States or naturalized by the laws thereof.” Cong. Globe, 39th Cong., 1st Sess., 2768. (Emphasis added.) The final version of the Citizenship Clause was undoubtedly intended to have this same scope. See Flack, supra, at 88-89,” 401 US at 842, 843.
Justice Brennan:
“In the light of the complete lack of rational basis for distinguishing among citizens whose naturalization was carried out within the physical bounds of the United States, and those, like Bellei, who may be naturalized overseas, the conclusion is compelled that the reference in the Fourteenth Amendment to persons “born or naturalized in the United States” includes those naturalized through operation of an Act of Congress, wherever they may be at the time. Congress was therefore powerless to strip Bellei of his citizenship; he could lose it only if he voluntarily renounced or relinquished it,” 401 US at 845.
Regarding overseas naturalization, your reference says,
“A spouse of a member of the U.S. military applying under this provision may also qualify for naturalization under INA 316(a) or INA 319(a), which could permit him or her to be eligible for overseas processing of the naturalization application, to include interviews, filings, oaths, ceremonies, or other proceedings relating to naturalization.”
More from the USCIS:
“The National Defense Authorization Act for Fiscal Year 2008 added Section 319(e) to the INA which allows certain eligible spouses of service members to naturalize abroad without traveling to the United States for any part of the naturalization process and also treats qualifying residence abroad as residence and physical presence in the U.S. for purposes of naturalization. . . .The National Defense Authorization Act for Fiscal Year 2008 amended Section 322 of the INA to allow certain eligible children of service members to become naturalized U.S. citizens without having to travel to the United States for any part of the naturalization process.”
https://www.uscis.gov/military/citizenship-military-personnel-family-members/citizenship-spouses-and-children-military-members
No question that original language would cover those naturalized abroad as well as those naturalized in the US. That begs the question of why the language was changed. Moreover, the argument is that Cruz was not naturalized at birth in Canada, but was rather a citizen at birth, so even the original language doesn’t cover him. It would need to say something like, “those born citizens abroad”.
Conclusion: It’s a mess. My argument is that where things are uncertain, you have a default. In a criminal trial, when some evidence says guilty and some not, the default is not guilty. In eligibility, it is eligible. In a case like Bellei, I think the reasonable default is if someone is a citizen, however they got it, they remain one.
I missed the section on military spouses. I suppose with the law as it is, they would be well advised to schedule their oath within the US whenever possible.
Professor Eric Posner (Judge Posner’s son) disagrees with Doc.
I take issue with Posner’s use of natural. Like “natural food” it means what the seller wants it to mean. Gay sex was long said to be “unnatural”, except it turns out to be natural for some people and studies have documented it in most mammalian species.
The “natural” argument has been used by the birthers to claim that 2 citizen parents are needed to make a “natural” citizen. And like the argument that most Americans obtained citizenship by being born in the US, it’s also true that most had 2 citizen parents. This seems like shaky ground.
Furthermore if Parliament gave people “the status of those natural born”, that would include all the rights that go with that status. So if the natural born have the right to run for President, wouldn’t those with that status have that right?
I think a more general way to say this is, Salon.com disagrees with Doc, since every time I go there, it’s another “not eligible” story.
I think Lincoln would have referred to Fremont as a pain in the ass, but he certainly was a colorful character.
I would agree. It is well established in law (Bellei excepted) that the ONLY distinction between a natural born citizen and a naturalized citizen is eligibility for the presidency. Well if Congress wrote a statute that “considers” someone a natural born citizen, I would ask “considered for what purpose?” Given that there is only one purpose, it must be for that one.
But what if Congress just says they are citizens. Seems odd that when Congress said they would be considered as natural born citizens, that is significant, but when it says they are just citizens, it is not significant. If Congress said in 1795 that such persons were naturalized citizen and not natural born citizens, would that count? Clearly they could have as Parliament clearly could have. If they could deny them citizenship at all, they could grant them partial rights of natural born citizens as Parliament had done. I still don’t get where is the evidence that after 1795 that Congress intended to confer natural born status on children of citizens?
But there was a huge difference between the two. As Blackstone tells us “this maxim of the law proceeded upon a GENERAL PRINCIPLE, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once.” Hence, common law natural born subjects owed their natural, perpetual, immutable allegiance to England and statutory natural born subjects owed their natural, perpetual, immutable allegiance to a foreign prince. To Coke, and seeming Blackstone as well, this was a universal rule based on the law of nature. Hence, England did not claim the allegiance of statutory natural born subjects at birth. Their claim was secondary arising only when such subjects left their native country and, even then, was subject to dispute with their native country. Accordingly, a few years after the adoption of the Constitution, England and the US started arguing over impressment. England never claimed the right to impress statutory natural born subjects born in the US since by their own law, such persons owed their natural allegiance to us. Accordingly, most of the debates over the next 20 years focused on where the sailors were born and the United States trying to protect our native born. I don’t think anyone even mentioned jus sanguinis during the entire dispute. In 1797, Congress passed a law stating all ships were required to record the place of birth of its crew to protect such crew from impressment. The United States would later in the 19th century adopt a similar position as England in that they would not claim the allegiance of foreign born statutory citizens at birth while such persons were in their native country.
I think a possible theory for the confusion on this issue may based upon the fact that there is much evidence that in England and America, jus soli was considered a rule of universal application, while jus sanguinis was not. Notice that both Madison and Blackstone based jus soli on a “general principle,” not the common law. Such “general principle” was a universal principle that the common law was based on according to Coke.
Thus, accordingly to this theory, the states and the federal government didn’t need to provide in statue or Constitution that jus soli was in place as they thought such was the rule whether they codified it or not. Thus, the lack of enactments defining jus soli citizenship. Jus sanguinis in England and America needed to be provided by statute as no one said such was a universal rule. So what evidence is there that people in America believed this:
“It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born.… Zephaniah Swift, A system of the laws of the state of Connecticut: in six books, Volumes 1-2 of A System of the Laws of the State of Connecticut: In Six Book, pg. 163,167 (1795)
“Natural allegiance is that which is due from a man to the country which gave him birth;” The New and Complete American Encyclopedia, pg. 258 (1805).
“Natural allegiance is such as is due from all men to their native country; for, immediately upon their birth, they are under the protection of government ; at a time too, when (during their infancy) they are incapable of protecting themselves.” William Charles White, a Compendium and Digests on the laws of Massachusetts, pg. 74 (1809)
“Natural allegiance is the consequence of being born within the jurisdiction of a particular sovereignty.” William Charles Jarvis, The Republican: or, a series of essays on the principles and policy of free states, pg. 71 (1820)
“To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government.” James Kent, Commentaries on American Law (1826).
“The country where one is born, how accidental soever his birth in that place may have been, and although his parents belong to another country, is that to which he owes allegiance.” Leake v. Gilchrist, 13 N.C. 73 (N.C. 1829)
“First — Persons, who are born in a country, are generally deemed citizens and subjects of that country.” Joseph Story, Commentaries on the conflict of laws, pg. 48 (1933)
“And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.” Attorney General Bates, Opinion of Citizenship, (1862)
“birth binds man by the tie of natural allegiance to his native soil, and such allegiance gives, by the principles of universal law, to the country in which he was born rights unknown to mere voluntary or statutory allegiance.” Tobin v. Walkinshaw, Circuit Court, U. S., July Term, 1856
“Natives are those born within the national jurisdiction; aliens are born without that jurisdiction. The exception to this almost universal rule, are the foreign-born children of ambassadors, who are assumed to carry with them the jurisdiction of the nation which they represent.” John Norton Pomeroy, Introduction to Municipal Law, pg. 419 (1865)
“They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country.” Senator Howard, Cong. Globe, 39th Cong., lst Sess. 2765-66 (1866).
“It is a principle of universal law that every person born in a country, and not a slave, is a citizen or subject of such country, and unless excluded by special laws is entitled to all privileges or citizens or subjects. ” Sen. Davis, Cong. Globe, 39th Cong., lst Sess. pg. 182 of Appendix (1866)
“It is a rule of universal law, adopted and maintained among all nations, that they who are born upon the soil are the citizens of the State. They owe allegiance to the state, and are entitled to the protection of the State. Such is the law, whether you put it into this bill or not. So far as this declaration of the bill is concerned, it is but reiterating an existing and acknowledged principle of law.” Rep. Thayer, Cong. Globe, 39th Cong. 1st Sess. 1152 (1866).
“Mr. Justice Curtis held that the Constitution of the United States assumes that citizenship can be acquired by nativity. That is the common law, that is the law of the civilized world, that he who is born in a country, and not made a slave at the moment of birth by any municipal law, becomes, by virtue of his birth, a citizen…” Senator Johnson, Cong. Globe, 39th Cong., lst Sess. 1776 (1866).
“The honorable Senator from Kentucky…forgets this general process of nations and or nature by which every man, by his birth, is entitled to citizenship, and upon the general principle that he owes allegiance to the country of his birth, and that country owes him protection. That is the foundation, in my understanding, of all citizenship…” Senator Morrill, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. p. 570 (1866).
“Why, all the world knows, the most unlettered of our people understand, that every human being born within the jurisdiction of any nation, or naturalized under its laws, is, by virtue of those facts alone, a citizen of that country in the fullest and amplest sense of the term.” Rep. Kerr., Cong. Globe. 1st Session, 42nd Congress, pt. 2, pg. 47 of appendix (1871).
“Now where is the authority to except the native-born African from the application of the general rule of law that every native shall be a citizen of the country on whose soil he is born?” Rep. Raymond, Cong. Globe, 39th Cong. 1st Sess. 1266 (1866).
“As a positive enactment this would hardly seem necessary….What is a citizen but a human being who, by reason of his being born within the jurisdiction of a government, owes allegiance to that government?” Congressman Broomall, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. 1262 (1866).
“Every person born within the jurisdiction of a nation must be a citizen of that country. Such persons are called subjects of the Crown in Great Britain, in this country citizens of the United States….It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
“We must depend upon the general law relating to subject and citizens recognized by all nations for a definition, and that must lead to a conclusion that every person born in the United States is a natural born citizen of such States, except it may be that children born on our soil to temporary sojourners or representatives of foreign Governments are native born citizens of the United States.” Rep. Wilson. Cong. Globe, 39th Cong., lst Sess. 1117 (1866).
“This clause is unnecessary, but nevertheless proper, since it is only declaratory of what is the law without it….it was and is that “all children born here, are citizens, without any regard to the political condition or allegiance of their parents.” Rep. Lawrence, Cong. Globe, 39th Cong., lst Sess. 1832 (1866).
Ballentine, you and others make too much of the fact that the third Congress, in 1795, did not say “natural born citizen,” but just plain citizen. Is there any evidence that the members of that body said anything to the effect “on second thought … “?
On effect, overruling the first Congress? Did the latter omit “natural born” as a policy preference, or did it consider the 1790 law unconstitutional?
What is the evidence?
Yeah, but could he possibly be an NBC?
* His parents were unmarried, but lived together.
* His mother was married to a man who was not the father.
* His father was an escaped con.
* His father was an ‘illegal’ immigrant.
* His father NEVER natuarlized
Wow. I think this is the first time ever I got a Google search result from Encyclopedia Britannica – have they just opened up?
He was an explorer, businessman, ‘lucky’ property developer (i.e. he bought land in CA just before the gold rush and made a fortune), Army General, politician. He had a hand in one heck of a lot of stuff, mapping the Oregon trail and routes into California, taking California from Mexico, managing the Western front in the Civil War and seizing control of the Mississippi.
Britannica and Wikipedia seem to have different views as to Fremont’s effectiveness during the Civil War. Britannica seems to think he was a poor leader, but Wikipedia points out that he identified Grant’s skills and saved Kentucky from joining the Confederacy after it had been attacked by Polk.
Encyclopedia Britannica: John C Fremont
Wikipedia: John C Fremont
Absolutely. But notice that Fremont refused to run against Lincoln for the Republican nomination even though he was pressured to do so by the radical wing because a split in the party would probably have prevented Lincoln from being re-elected.
Actually, you and others read way too much into the 1790 act. One can draw multiple inferences from the insertion and deletion of the natural born language in 1790 and 1795, but it is all speculation. I suppose you think the original insertion highly significant and its removal a mistake. Where is the evidence that is correct and not the opposite. And where is the evidence that Congess didn’t think it could choose between making such persons either natural born or naturalized citizens which would seem to follow Emglish precedent?
At the end of the day, the “citizen at birth” theory has no real evidence to support it. It is a possible explanation for the 1790 act, but far from the only explanation. If such was understood as the original public understanding of natural born, the should be plenty early authority saying so. There isn’t. Where is the early authority saying foreign born children of citizens can be president. Did any early authority of significance say that? Does English authority support these theories? Not really. At the end of the day, we don’t have enough evidence to definitively settle this issue from an originalist perspective, however the evidence for the “citizen at birth” theory is pretty weak.
So are you willing to concede that it was the intent of Congress that persons born US Citizens abroad from 1790 to 1795 were eligible to become president?
I suppose it’s possible that the 1795 Act intentionally made the children of citizens born overseas just citizens and not natural born citizens, that being in line with a trajectory of laws that ended up making such persons not citizens at all a few years later.
Most (granted, not all) of your citations are stated so that birthplace is a sufficient condition, but not a necessary one, to have allegiance at birth. I do not know the context of these citations, but when one is arguing a point, one doesn’t dilute the argument with details that are not on the point (i.e., the status of foreign-born citizens).
The argument that the 1790 act conferred such status is stronger than the case it meant any citizen at birth. Again, there is no definitive evidence for any theory here.
The citations clearly point out the natural allegiance in America followed jus soli and was universal in application as Coke and Blackstone said. My point being that such is why they didn’t need to include jus soli in the constitution. However, when talking about natural allegiance, do you think they all just left out that natural allegiance was jus sanguinis as well. Then, where are the citations defining natural allegiance coming from descent?
Why didn’t England treat such foreign born persons as owing their natural, permenant allegiance to England? Perhaps because Blackstone said one can owe only one such allegiance and such was defined by place of birth. Clearly, plenty of early American authority seems to support such theory. No one said that native born American children of British subjects owed military obligations and their natural allegiance to England.
Dual citizenship is treated differently today that it was in the past. The vast majority of countries today recognize it. I think that is a function of 2 things: the ease of international travel and the fact that women are no longer men’s property and thus do not take on their husband’s citizenship upon marriage (as Donald Trump’s mother did-were he born today, there is a good chance his mother would have still been a UK citizen and the birthers would have to call him ineligible). It’s all very well to quote Coke and Blackstone, but this is 2016 and they should not be taken as gospel. Science made the mistake of taking Aristotle and Galen as incontrovertible authorities and that didn’t work out so well. Like science, law needs to accept and adapt to empirical realities.
Which brings up the question: How is originalism necessarily modified by changing society?
In some cases, at least, it’s through Amendment. The 14th, for example.
If you’re a hard core originalist, that’s really the only way and I don’t think that works well in the real world. Remember, the 14th (and the 13th) took a bloody civil war in which hundreds of thousands died. Otherwise, the amendments have been mostly housekeeping stuff; other than women’s suffrage and prohibition they really didn’t affect society much (and both of those could have been done by legislation). I honestly see little chance of any meaningful amendments being passed in today’s partisan atmosphere.
So the courts have to re-interpret or you are left trying to run a 21st century society with an 18th century rule book, though an excellent one for its time. Fundamentally, it seems a bad idea to have a 5-4 vote of unelected poo-bahs settle contentious issues, but that’s where we are..
Scientist:
Thank you for the information on the source of Ted Cruz’s citizenship. As for the obituary for my argument, I would suggest it is premature.
The rock, if you will, upon which Originalist arguments are founded is the lack of a definition of “citizen” in the 1787 constitution. However true that may have been, it is not true now and has not been since the adoption of the 14th Amendment. This amendment defines citizen as either a person born or naturalized in the US subject to the jurisdiction of the US. This defines the word “citizen” in “natural born citizen”. Since the word “citizen” in the phrase is modified by the adjectives “natural born”, I think it refers to a subset of the set of citizens and excludes the other. I think that “natural born” means “by birth” and not “naturalized”.
I think what you are saying is the existence of non-14th Amendment citizens means that the 14th Amendment should be ignored or changed in some way because of what Congress has done. I don’t think that’s the way it’s done but I am not sure it makes any difference. The non-14th Amendment citizens are citizens because Congress is empowered by the Constitution to naturalize citizens. Therefore, the non-14th Amendment citizens are naturalized citizens. So, the question is does the phrase “natural born” refer to “by birth”, by “naturalization in the United States” or by “naturalization by birth outside of the United States”? If I understand the arguments of Cruz’s supporters, the answer is that citizens by birth are eligible, citizens who are naturalized by birth outside the United States are eligible but citizens who are naturalized in the United States are not eligible. I think the proper description of that argument is “special pleading”.
Finally, I don’t think that the Constitution allows the election of a President whose eligibility is in doubt. The sentence in question states, “No person except . . . shall be eligible to the office of President; . . .” I think that this requires a person seeking the office to demonstrate they fall within one of the exceptions.
All of which is not to say that you are wrong. I can easily imagine the Supreme Court declining to remove a person nominated or elected President from the election or office and find some reason, any reason, for doing so. What I was trying to do was to sketch out an argument which did not rely on anything other than the language of the Constitution.
lake 1: I don’t believe I wrote any obituary.
Again, the 14th Amendment says, “These people are citizens”. It does not say no one else is a citizen . If it did, then Cruz wouldn’t be a citizen at all, since he is neither born in the US, nor naturalized in the US. But I haven’t heard anyone claim he is not a citizen.
The rest of your argument, in my opinion, is speculation. It could be right, it could be wrong. I’m not persuaded by your`arguments, nor am I totally persuaded by the converse.
As for doubt, there is always doubt. Any law passed by Congress could possibly be unconstitutional. Someone who doesn’t like the law even for purely selfish reasons will claim that it is, though the presumption is that laws are constitutional unless ruled otherwise. But there is always doubt-ask an anti-abortion person whether Roe v. Wade removed all doubt over abortion.
Eligibility is the same. The law says candidates are presumed eligible until proven otherwise-Doc cited a bunch of references showing that. You may not approve, but that is the rule. So, a person seeking office does not in fact have to demonstrate a darned thing-the burden falls on those seeking to disqualify them.
So, no obituary, just a friendly discussion.
Harvard’s Tribe debates Yale’s Balkin on Cruz eligibility
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/06/tribe-v-balkin-on-whether-ted-cruz-is-a-natural-born-citizen/
How many angels can dance on the head of a pin?
All angels are angels, but only natural born angels can dance on the head of a pin?
But fallen angels are still angels are they not.
If you can not decide on what in hell “natural born” means, you will never be able to come to the decision as how many angels can dance on the head of a pin, will you?
And any decision will never be believed by all.
We fallen angels want in on the action.
You are making the same mistake as the birthers who claim that Minor v. Happersett defines “natural-born citizen.”
The 14th Amendment doesn’t define “citizen.” It clarifies that persons born or naturalized in the United States, while subject to its jurisdiction, are citizens. but it doesn’t rule out citizenship by other means. It also says that those who are born or naturalized in the United States “are citizens of the United States and of the state wherein they reside.” What if a person born or naturalized in the United States has never resided in a state but has always lived in D.C.? You could argue that the 14th Amendment requires both if you insist the it is a definition.
Balking has a “specious” argument, it certainly is a deception to introduce acts of a parliament vs acts of an electorate who own a Constitution
Why is it that Americans cannot understand that their Constitution rules. A British Parliament can do as it pleases with declaring who will be “subjects” because there isn’t a peoples Constitution in the U.K.
For example: The American Constitution states ‘born on American soil” and as it states then it is the peoples law and cannot be changed by Congress, but can be changed by an amendment to the American constitution acceptable to the electorate.
Tribe is more accurate with his arguments as he does include the political doctrine in his discussion of NBC
Did anyone post a link about the debate between Harvard law professor Laurence Tribe and Yale law professor Jack Balkin on whether Ted Cruz is a “natural born citizen”?
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/06/tribe-v-balkin-on-whether-ted-cruz-is-a-natural-born-citizen/
The entire debate is on YouTube in 16 segments. The article links the videos.
You haven’t read the American Constitution, have you?
No. But someone has told him about it.
It does? Where? I just ran a word search of the Constitution, and the word “soil” is nowhere to be found.
http://www.archives.gov/exhibits/charters/constitution_transcript.html
I would say that the quality of doofus that the birthers are sending us has really gone downhill, except… it hasn’t.
I’ll give Wake Up the benefit of the doubt that he was paraphrasing the 14th Amendment’s Citizenship Clause.
I think “born on American soil” is a fair paraphrase of the 14th Amendment. So that makes Pres. Obama a natural born citizen. Perhaps Mr. Wake Up can concur so we can move on to Sen. Cruz.
Any other interpretation would lead to a paradox anyway. If the people (= citizens) vote for a Constitution and then the Constitution says that some of those who voted for it aren’t citizens, was the Constitution properly voted for?
I think the main problem with originalism vs. “living Constitution” is that while both side have good arguments, they tend to be conflated.
Original intent makes a lot of sense but only if seen as broadly encompassing new developments (the law against murder also covers uranium poisoning although uranium was unknown in 1776; laws covering “communication” did not need to be updated when email came around, and then again when texting and WhatsApp came around).
So the “proper” interpretation would apply a mixture of originalism and “living Constitution”.
Besides, if originalism were applied properly, the 2nd Amendment would *not* mean “every yokel can own an AK-47”.
And if one were to dispute that and argue that the intent was to protect against federal government overreach, then logically everyone should be allowed to own nukes since federal government does, too.
Actually quite the opposite I’m afraid.
There was extensive private ownership of all of the tools of war up to and including artillery, warships and the most advanced small arms and explosives of the time.
All (male) citizens were a part of the, using an originalist view, the ‘reserve’ or ‘unorganized’ militia and as such should have pretty much unfettered access to anything other than WMD’s.
Oh and to correct you’re ”yokel’ statement, access to and ownership of actual AK47’s or other such select fire assault firearms is heavily restricted in the USA, requires in effect federal licencing, is only legal in some states and where legal and licenced costs serious amounts of money in the 10’s of thousands of dollars range
The what is the meaning of ‘is’ crowd cannot determine what is an example or a declaration.
The what is the meaning of “is” crowd cannot link the “explicit” and “implicit” intent of the Article II section 1 clause 5, in black letters in the founding documents.
To be a “citizen” implies what ? To be a “Natural Born Citizen” implies what ?
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States – ”
The authority given to the Federal government to coin money does not state what type of machinery or processes should be used to coin money, does it ?
The “implied” authority is used by the Federal government to purchase goods and services to accomplish their obligation to coin money for the United States isn’t it?
But does that equate the “well-regulated militia” in the 2nd Amendment?
I always thought the 2nd was an acknowledgement of the situation of the time with no standing federal army, not an insurance against federal government overreach (as RW’s like to claim).
Or is the argument that the Constitution was supposed to protect states against government rendering them helpless against (foreign?) aggressors by outlawing gun ownership and thereby effectively dismantling the (well-regulated) state militia?
There are historians who argue that the real, though unstated goal was to preserve slavery by ensuring slaveholders were armed.
The idea that brave bands of armed citizens (like the Bundy militia) overthrow tyrannical government forces is little supported by modern history. Governments fall when the army or significant segments of the army defect. And the process can be so awful as to make a stable dictatorship look good (eg. Syria).
Again, you have to go back to the original meaning of the phrases, ‘well regulated’ to be in proper working order, itmeant to have the appropriates skills, training and equipment as well, structured via the meaning if the Constitutional and the expectations of Congress, NOT a bundle of rules and regulations.
Have a look through the SC 2nd Amendment cases such as DC v Heller
The militia’s purposes included many of the functions you see in the National Guard today, support of civil government, disaster relief, protection. So, as an example the militia would have been raised and dispatched during the French Indian wars of 1754-1763 to support the provincial regulars of the time, to protect outlying settlements etc.
I feel confident in stating that the intent was not to facilitate mentally deranged people walking into a school and killing children.
Possibly, but if that’s what he meant he shouldn’t have put it in quotation marks.
Do try not to go down the wholly fallacious “It’s for the children” route, cheapens any attempt at rational rebuttal.
The meaning is explicitly defined in the Constitution Article I Section 8.
Gun advocates’ main argument seems to be that it is precisely for the fact that the citizenry is widely armed that nobody ever dared try to establish a tyrannical government in the first place. And it’s probably the hardest argument to argue against since it looks like it’s validated by history (no other democracy has been this stable in the last 300 years, not by a long shot).
My favourite counter-argument is that being armed did not help blacks when they were treated like second class people in the pre-Civil Rights Act times.
Britain, Canada (got independence by evolution rather than revolution), Iceland (world’s oldest democracy), Sweden. All of those were MORE stable than the US, since they didn’t have a civil war in the last 300 years, Civil wars are kind of indicative of instability in many people’s view. Australia and New Zealand haven’t been around for quite 300 years but show a strong likelihood that they will be pretty stable.
As Michael Moore pointed out in FAHRENHEIT 911 the problem isn’t only guns, video games, entertainment etc., it’s that — to speak bluntly — an all too large % of Americans are psychos [short-hand term to be defined].
We have lots of guns in France, remarkably bloody history, and in some parts of the country like Marseilles fairly high gang activity, and still our ratio of gun-related violence is peanuts compared to the US.
Guns per 100 residents (Wikipedia, 2014)
United States 112.6
France 31.2
Not saying you’re wrong about the psycho thing, however. I mean, what else would you call the multitudes who think Donald Trump and Hot Pockets are palatable?
Alternate ending for my last comment:
Not saying you’re wrong about the psycho thing, however. As Exhibit A, here are two things made in the USA:
Donald Trump
Liquid Ass in a Bottle
One of those things is a disgusting prank that reminds people of a nasty fart.
The other is liquid ass in a bottle.
That’s funny. Conspiracy theorists are talking about the present-day machinations of the Illuminati, and they were disbanded over 200 years ago. Conspiracy theories have a life of their own, totally independent of facts and evidence.
If the FBI confirmed Obama born in Hawaii, conspiracy theorists would just say they were forced to lie, were afraid, were in on it.
The biggest birther lies are the claims that various things would settle the issue. That’s not how the conspiracist mind works. They just expand the conspiracy to accommodate new evidence against them.
Oh I didn’t mean to imply we had as many guns as you, but still you’ll concede that 1 person out of 3 having a gun in France is not an insignificant percentage
However according to wiki, firearm-related death rate per 100,000 population per year is 2.8 in France vs 10.6 in the US (vs 0.23 in the UK and 1.0 in Germany).
So while we French do have a bad record in this field, it pales when compared to the US, and I believe that gun ownership & availability of guns isn’t the answer to this discrepancy. I think one must look into the history and psyche of the nation.
There is no “battle” no more than there really is about people who don’t think the Moon Landing was real or Earth is round.
A bunch of lunatics ignorant of facts, technology and the law muttering in a dank corner somewhere does not constitute a “battle”. There is just you on one side, and the rest of the world on the other — literally, in this case.
31 guns per 100 residents doesn’t necessarily mean that 1 in 3 people owns a gun.
Studies in the US show that even with 112 guns per 100 residents, 2/3 households don’t own any guns. That implies that in the 1/3 of households that do own guns, they own many-around 10 on average. I don’t know if similar studies have been done in France.
The multi-gun armories, to me at least, indicate a fixation on guns by a segment of the American population. That may not be all of the history and psyche of the nation to which you refer, but it is an important part of it.
Death by gun violence in the US showed a sharp decline after its peak in 1993 with a rate of 15.2 per 100,000. What is most notable to me in that number is that in while the homicide rate by gun is less than half what it was in 1993, the suicide rate is down just a bit. In 2014 according to a Pew Research publication the homicide rate by gun is 3.4 per 100,000, but the suicide rate is 6.7.
Non-fatal crime victimization by gun was 725.3 in 1993 vs. 174.8 in 2014.
http://www.pewresearch.org/fact-tank/2015/10/21/gun-homicides-steady-after-decline-in-90s-suicide-rate-edges-up/
It seems to me that the elephant in the room is the easy access to guns for suicide.
Kerchner’s petitions against Rubio and Cruz:
https://cdrkerchner.wordpress.com/2016/02/10/stop-the-constitutionally-ineligible-ted-cruz-and-marco-rubio/
“Whereas Canada whiles a neighbor and friendly is a foreign country and is not part of the United States or its territorial jurisdictions;”
I’ll trade him two commas for an “s”.
Here is his link that allows someone to electronically sign the petition.
https://cdrkerchner.wordpress.com/2016/02/06/announcement-electronic-signing-of-petition-campaign-to-stop-the-ineligible-canadian-born-ted-cruz-now-online/
I don’t see how this is any different from jut mailing a letter to your congressman.
BTW, here is J. B. Williams’ petition to impeach President Obama. They set the bar really low (1000 signatures) and they still are having trouble getting signatures.
http://www.ipetitions.com/petition/impeach-president-obama-7
Nice to see Kerchy isn’t wasting his life in a fantasy. {really really need a sarcasm icon}
Well, I was born where my mother WAS at the time, but she lived elsewhere.
Let’s drill down.
Deaths per 100,000 population by firearm
France in 2012:
– Homicide – 0.21
– Suicide – 2.16
US in 2013
– Homicide – 3.66
– Suicide – 6.70
The other statistic that grabbed me is that the overall suicide rate in France is 23.5 per 100,000 for men and 7.5 for women. That compares to 10 and 2.9 respectively in the US.
David Farrar hazz a sadd over Kerchner’s petition:
https://disqus.com/home/discussion/americanthinker/cruz_his_momma_is_natural_born_thus_so_is_he/#comment-2511777503
Was it 3 days by plane with several stops/transfers from where she lived? Were medical conditions much less developed than where she lived? Did she know anyone there?
Yes, we lived in quite the “metro area.”
As a person , I care little about suicide by guns, as anyone who is that desperete will find some way to take the action.
When the society wanted to stop the capital punishment for rape or murder we are facing the consequences of non-punishment for capital crimes.
If you are not facing the death sentence it is much easier to go into the capital crimes area as all that will happen you will be jailed for some time or another.
Accidental death is a none topic, as you can not stop accidents.as are “an unforeseen and unplanned event or circumstance”
And someone under an impulse will kill themselves if a quick solution is at hand, who might think better if given more time..
Prison is not punishment?
So what about countries with no capital punishment-are their rates of rape and murder lower or higher than the US? Hint: The answer starts with an “L”.
No surprise there. I figured it was him. Also “helen”.
Yes. Helen, sandiegojoe, and saynomorejoe.
The attester was generally going to be the attendant, and in this case it was the attending physician. The attending physician would have the records of birth and not simply pull facts out of thin air. Even when a certifier is just a hospital administrator (such as my child’s birth), the information comes from hospital records and isn’t just pulled out of thin air.
And in any case, a birth certificate issued by a government entity is prima facie evidence of the facts presented on it. While it certainly is possible for such a document to be incorrect, the burden of proof would be on the doubters to prove that the information is incorrect and not on the government agency issuing it to prove that it is.
California’s law specifically notes that a birth record issued by the state (or its subdivisions) is prima facie proof of the facts within.
So does Hawaii’s:
Doc – did you obliterate jacko’s entire screed?
“The prosecution argued defendant failed to prove he was a minor at the time he committed the crimes. The prosecutor argued Denis believed defendant was born in 1990 and defendant used a birth year of 1988. The prosecutor asserted the trial court could not rely on the certified birth certificate because a page attached to the birth certificate reflected employees do not assume responsibility for the content of the document, so while the certificate was authenticated, the content was not authenticated. Further, the prosecutor asserted Denis and Zoyla suffered credibility problems—Denis because he could not recall how old defendant was when he visited him for the first time, and Zoyla because she never knew defendant’s date of birth until, one day, she randomly asked Yolanda”
214 Cal. App. 4th 843; 154 Cal. Rptr. 3d 314; 2013 Cal. App. LEXIS 212
So ,you think I am wrong, and therefore you think you are right, and the court says otherwise.
LOL
“The admission of appellant that he believed that he was not Richard’s father although he could not prove that fact supports the inference that he had conjugal access to his wife within the period of the child’s conception in which event his paternity would be conclusively presumed. ( Code Civ. Proc., § 1962, subd. 5.) The fact that Louis John Holtz appears on the birth certificate as father is only prima facie evidence of the fact ( Health & Saf. Code, § 10551), was open to contradiction ( Estate of Woodson, 36 Cal.App.2d 77 [96 P.2d 1016]) and must fall before the conclusive presumption above referred to”
Nothing like showing prima facie is just evidentiary in nature.
“601. A presumption is either conclusive or rebuttable. Every
rebuttable presumption is either (a) a presumption affecting the
burden of producing evidence or (b) a presumption affecting the
burden of proof.
602. A statute providing that a fact or group of facts is prima
facie evidence of another fact establishes a rebuttable presumption”
Never mind. I see that the post was moved to the open thread.
“410. As used in this chapter, “direct evidence” means evidence that
directly proves a fact, without an inference or presumption, and
which in itself, if true, conclusively establishes that fact.”
Amazing , isn’t it?
”
I think you remain clueless. It is not the State of Hawaii that asserts Obama was born in Hawaii. It was Dr. David A. Sinclair and Stanley Ann Obama. The State asserts that those individuals did in fact certify the facts of Obama’s birth. Obama’s birth certificate is sufficient proof of his place of birth for any legal purpose that exists. While prima facie evidence is refutable, birthers have never been able to refute it in Obama’s case.
Let me put it another way. The Long Form Birth Certificate in court is essentially an affidavit sworn by Dr. Sinclair, who is a competent witness to the facts.
I suppose you think that means something relevant. It’s certainly not amazing.
How about “The Cavite Kid?”
You forgot to mention that the defendant’s birth certificate was from Nicaragua, and there were doubts that the defendant was the person named on the birth certificate. The defendant’s name was Jonis Centeno; the name on the Nicaraguan birth certificate was Jhonny Garcia. The court didn’t doubt the authenticity of the birth certificate, it doubted that the birth certificate was the defendant’s birth certificate. As the Court ruled,”So I accept this. This is a birth certificate of someone. Is it the man before me in court today? I just don’t have enough evidence to tell.”
So you have cited a case which has absolutely nothing to do with the probative value of Barack Obama’s birth certificate. Typical birther misdirection.
http://www.leagle.com/decision/In%20CACO%2020130319048/PEOPLE%20v.%20CENTENO
So yes, you are wrong.