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

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!

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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.

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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.

The English Common Law and the American Revolution

I was particularly stunned by a comment by birther litigant and frequent Internet commenter David Farrar:

I have no aversion to common law. English common law was never American colonial common law. The English Parliament did not make common law for the American colonies. It was this lack of representation in Parliament that, indeed, lead to the American Revolution.

— David Farrar
Comment at Augusta Free Press (2015)

Not only is this not true, it is the opposite of the truth. The American Revolution was justified in part by the refusal of the English to allow the Americans the rights that would have been afforded them under the English Common Law. I have known this for some time from my reading on the topic of citizenship. Justice Joseph Story wrote about the expectations Americans had for the English Common Law:

§  78 … In the charters, under which all these colonies were settled, with a single exception, there is, an express declaration, that all subjects and their children inhabiting therein shall be deemed natural-born subjects, and shall enjoy all the privileges and immunities thereof; and that the laws of England, so far as they are applicable, shall be in force there; and no laws shall be made, which are repugnant to, but as near as may be conveniently, shall conform to the laws of England.  Now this declaration, even if the crown previously possessed a right to establish what laws it pleased over the territory, as a conquest from the natives, being a fundamental rule of the original settlement of the colonies, and before the emigrations thither, was conclusive, and could not afterwards be abrogated by the crown.  It was an irrevocable annexation of the colonies to the mother country, as dependencies governed by the same laws, and entitled to the same rights.

§  79.    And so has been the uniform doctrine in America ever since the settlement of the colonies.  The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation.  The whole structure of our present jurisprudence stands upon the original foundations of the common law.

§  80.    We thus see in a very clear light the mode, in which the common law was first introduced into the colonies; as well as the true reason of the exceptions to it to be found in our colonial usages and laws.  It was not introduced, as of original and universal obligation in its utmost latitude; but the limitations contained in the bosom of the common law itself, and indeed constituting a part of the law of nations, were affirmatively settled and recognized in the respective charters of settlement.  Thus limited and defined, it has become the guardian of our political and civil rights; it has protected our infant liberties; it has watched over our maturer growth; it has expanded with our wants; it has nurtured that spirit of independence, which checked the first approaches of arbitrary power; it has enabled us to triumph in the midst of difficulties and dangers threatening our political existence; and by the goodness of God, we are now enjoying, under its bold and manly principles, the blessings of a free, independent, and united government.

Chapter XVI. Justice Joseph Story on Common Law and Constitutional Origins of the United States Constitution

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Legal expert Donald Trump says Canadian birth may be problem for Ted Cruz

Speaking to reporters in West Des Moines, Iowa, Trump addressed the issue head on, reports the Dallas Morning News.

“He’s going to have to solve that problem. It could end up in litigation. It could take a long period of time.… It’s certainly a stumbling block that he has that other people don’t have,” Trump said, suggesting that Cruz might only be able to put any doubts to rest by going to court.

“Perhaps he’s going to have to go in for declaratory judgments. Perhaps he’s going to get rulings from some group of electioneers. He’s going to have to do something. Because it is a problem that a lot of people have been mentioning,” Trump said. “He’s going to have to get it resolved one way or the other. And I hope he gets it resolved in a positive way because I think he’ll add a lot.”

“Electioneers”? I thought he said “Mouseketeers.” Sorry about that.

Birther litigant David Farrar is all over the comments on this story, as he is pretty much any time the topic appears above a comment box. I left this reply:

Farrar can go all day like a lumberjack, but in the end he lost his case in Georgia, and so has every other person who made a similar argument.

Corruption of blood

I learned from the PBS Frontline documentary, “Secret State of North Korea,” that when someone defects from North Korea, the government imprisons their entire extended family. I, and I think most Americans, would find that behavior reprehensible, outrageous and unacceptable for any civilized country.

Such a sentiment also comes from the Judeo-Christian tradition when scripture says:

In those days they shall no longer say: "’The fathers have eaten sour grapes, and the children’s teeth are set on edge. ‘ But everyone shall die for his own iniquity. Each man who eats sour grapes, his teeth shall be set on edge.
– The Bible (ESV) Jeremiah 31:29-30

And it is found in the United States Constitution in Article III that mentions the curious term “corruption of blood.” Section 3 includes:

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The Wikipedia explains:

Corruption of blood is one of the consequences of attainder. The descendants of an attainted person could not inherit either from the attainted criminal (whose property had been forfeited on conviction) or from their other relatives through the criminal. For example, if a person is executed for a crime leaving innocent children, the property of the criminal is forfeited to the crown and will not pass to the children. If the criminal’s innocent father subsequently dies, his property cannot be inherited by the criminal’s children either: it will be distributed among other family members.

In the United States, a person’s crimes are his own, and do not work, at least legally, against his family. This is not, however, a birther-friendly principle. I have seen comments like the following many times over the past 6 years, for example this from the Free Republic:

What if Hitler had had his way with an underage American girl? Would his son be eligible?

Why is this POS student visa overstaying Indonesian in our country?

And just two days ago this appeared at Birther Report:

Hell Conman, let’s just let ANYONE with foreign born parents run for potus. How about President Bin Laden Jr.? President Adolph Hitler Jr. has a nice ring to it. Wait, here’s a better one…President Saddam Hussein the second! We could even start a squat-and-give-birth program whereby any scumbag roaming the surface of the earth could sneak into the country and drop a future potus! Jackpot! Hallelujah, rejoice! To hell with foreign allegiance, let’s become just another third world shithole and have a terrorist prodigy running our country! Doesn’t get any better than that!

They want to stigmatize a child because of his parent. They want corruption of blood.