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What is a “natural born citizen” and is Barack Obama one of them?

RC Radio: Interview with French Attorney Lupin

Vattel made clear

RC Radio continues in its tradition of interesting and distinguished guests, this time a French attorney who is also an editor of works (in English translation) by Emerich de Vattel! What a powerhouse combination for any discussion of both the language and the context into which Vattel wrote on citizenship.

Readers here will know well our distinguished commenter Lupin. Listen to him on RC Radio.

It was a great show. Here are early articles where Lupin has commented here (oldest first):


Senator says: I am a natural born citizen

“I renounced my dual citizenship”

Ted Cruz? No, this story is about Philippines Senator Grace Po who is seeking the presidency of her own country, one which also requires that the president be a natural born citizen. The question has been a hot topic in the local newspapers.

While there is documentary evidence that Po was born in the Philippines, she acknowledges that she was adopted, and so far has not disclosed the source of her United States citizenship. (Note that in order to be born a Philippine citizen, one must have one Philippine parent. Birth in the country does not create citizenship.) Further, she said in a recent news report that she renounced her US Citizenship in 2010. That statement is called into question because the Manila Times obtained a copy of her US Passport that it says was issued in 2011.

Po argues that her former dual citizenship is of no import because Philippine law  states that upon renunciation of foreign citizenship, one’s status reverts to what it was before becoming a dual citizen.

In the great system of ordering the universe there is a division between things that are my problem, and things that are not my problem. Grace Po’s eligibility to be president of the Philippines is not my problem.


Natural born dilemma

The Huffington Post has a new article out by Terry Krepel, “Birthers at WorldNetDaily Won’t Hold Cruz to Same Standard as Obama,” charging WorldNetDaily with hypocrisy, for not raising the same eligibility objections to the foreign-born Ted Cruz as they did against Barack Obama.

Apart from the editorial position of WND, birther commenters there and elsewhere (e.g. Mario Apuzzo and David Farrar) consistently declare the ineligibility of both, although they leave me wondering how they would actually vote. I have a 2016 election poll that I’d really like birthers to respond to:

If the Democratic and Republican presidential candidates were polling within 5% of each other, would you vote

  • Hillary Clinton? (58%, 15 Votes)
  • A third-party candidate you believed eligible? (31%, 8 Votes)
  • For the Republican candidate you liked ideologically, but believed Constitutionally ineligible? (12%, 3 Votes)

Total Voters: 26

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imageWND has not been completely silent on the issue with an article 2 days ago by Cheryl Chumley titled, “Rubio runs, tea party turns on him.” No loss of irony is seen in her selected quote from Rubio (pictured right) , who called himself “uniquely qualified” for the presidency. Despite that teaser, WND readers will find that the core objections against Rubio are policy based.

Indeed, one has to get pretty deep into the article before they touch the eligibility question:

Meanwhile, others contend Rubio’s not even a natural-born citizen and therefore, ineligible to seek the presidency. Rubio’s parents, as WND previously reported on at least two occasions, were not U.S. citizens at the time of his birth.

The article itself takes no position on Rubio’s eligibility.

Will birthers be the albatross around the Cruz candidacy?

imageIt’s official today. Ted Cruz is running for president. The Canadian-born Cruz, with only one U. S. Citizen parent, is blatantly ineligible to the office–if you buy into what the birthers have been saying since late 2008.

Cruz seems to be going for the politically far right by announcing his candidacy at Jerry Falwell’s Liberty University. How much of that far right crowd will write him off because they think him ineligible? YouGov conducted a poll in August of 2013 and found:

… more than half of Republicans (53%) would [theoretically] disqualify Texas Senator Ted Cruz from the Presidency on principle.  Cruz was born in Canada to a mother who was an American citizen, while his father was not.   But fewer than one in four Republicans think Cruz was born outside the country; only 10% know his mother was a citizen and his father was not.

Clearly the Cruz camp doesn’t think this issue is a show stopper. I personally think that those who make such a racket over their idiosyncratic definition of “natural born citizen” will readily cast principle aside, and vote based on other considerations, and justify it, if at all, by “if Obama can get away with it…”

In a sense the Cruz controversy takes us back to late 2008 when the first eligibility brief with the two-citizen parent theory appeared.  The Supreme Court has refused to hear any of the appeals of these cases, even one this past week, I believe because the issue is settled. Eleven courts ruled the same way, and as federal district judge Gibney said, the question for those born in the country is “well settled.” The same cannot be said for the foreign-born Cruz. While a majority of contemporary authorities seem to conclude that foreign-born citizens at birth are natural born citizens, there is no legal precedent such as US v. Wong to settle the matter. I myself had a very difficult time deciding this question, eventually coming down on the side of “natural born citizen” = “citizen at birth.”

And so we come full circle back to Professor George Gordon’s 1968 scenario for adjudicating the definition of “natural born citizen.” To get this into court and on track for the Supreme Court will take a viable candidate suing Cruz to keep him from being nominated by the Republican Party.

Meanwhile, birthers pleading for legitimacy, take every joke from liberals about Cruz eligibility as justification for their joke of a movement, for example this comment from 1600_Penn:

How can these libtards be conveniently ignorant about Barry, yet appear to have some semblance of understanding about the birth certificate issue when it comes to Cruz?

MAYBE justice IS coming through the back door.

They are setting their own traps!! I do love me some Karma.

Boo yeah!

Apuzzo wakes!

Apparently I wasn’t the only one to notice the Harvard Law Review Forum article by two former US Solicitor Generals who write, in agreement with Senator Bayard’s book on the Constitution from 1833, that “natural born citizens” are those who are born citizens, in contrast to those who are naturalized. Mario Apuzzo, vocal advocate for the “two-citizen parent born in the country” definition, has a new copyrighted article at Birther Report™ taking issue with Neal Katyal and Paul Clement.

The title of my article stems from the long period of silence at Apuzzo’s blog and reflects the fact that I didn’t know that he had written something last month regarding the eligibility of Ted Cruz, a person born a US citizen in Canada.

To quote Apuzzo as he criticizes Katyal and Clement:

The author’s argument suffers from the fallacy of bald assertion.

Apuzzo’s main criticism is that the authors don’t follow Apuzzo’s sources or agree with him on what is important. Since there is nothing new in Apuzzo’s argument in general, there is nothing new to say about it.

I think that because the subject article appeared at the Harvard Law Review Forum, it’s intended readers are expected to be able to fill in from their own knowledge parts of the argument necessarily skipped to keep the article from being too long. Apuzzo’s papers on the topic run many pages.

New NBC commentary appears at Harvard Law Review

Image result for harvard law reviewNeal Katyal, former acting solicitor general for President Obama and Paul D. Clement, former solicitor general for President George W. Bush, agree on one thing, Ted Cruz has what it takes to be president, at least Constitutionally speaking. What is a “natural born citizen” is the question they address in an article titled, “On the Meaning of ‘Natural Born Citizen’” published yesterday (11 March, 2015) at the Harvard Law Review Forum.


They call “spurious” recent arguments that someone born a US citizen abroad, like Cruz, is ineligible. In their view:

…the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings.

Their argument is based on the emphasis that the courts have given the English Common Low and those statutes enacted by the First Congress. They point to various English statutes from the 1700s that refer to the children of English subjects born overseas as “natural born” and to the phrasing of the US Naturalization Act of 1790 that states that those children born to US parents (under most conditions) are natural born citizens.

I might quibble with some of the emphasis in this short piece, but I wholeheartedly agree with this:

The less time spent dealing with specious objections to candidate eligibility, the better.