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Title: Ted Cruz is Not Eligible to run for president: A Harvard Law professor close-reads the Constitution
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Published: Jan 20, 2016
Author: Einer Elhauge
Post Date: 2016-04-06 15:24:09 by lana
Keywords: None
Views: 11808
Comments: 95
Ted Cruz is Not Eligible to run for president: A Harvard Law professor close-reads the Constitution The closer you study the Constitution, the weaker Ted Cruz's case squares with the actual meaning of "natural-born" Einer Elhauge Topics: Ted Cruz, Elections 2016, Editor's Picks, Donald Trump, Natural-born citizen, Can Ted Cruz be president, Can Ted Cruz run for president, constitution, aol_on, Business News, Life News, News, Politics News (Credit: Reuters/Chris Keane) The argument that Ted Cruz is eligible to run for president initially looked strong, then probable but uncertain. But closer examination shows it is surprisingly weak. The constitutional text provides that a president, unlike other elected officials, must be a “natural born citizen.” This language could not mean anyone born a citizen or else the text would have simply stated “born citizen.” The word “natural” is a limiting qualifier that indicates only some persons who are born citizens qualify. Moreover, when the Constitution was enacted, the word “natural” meant something not created by statute, as with natural rights or natural law, which instead were part of the common law. At common law, “natural born” meant someone born within the sovereign territory with one narrow exception. The exception was for children of public officials serving abroad, which does not help Cruz because his parents were not serving the United States when he was born in Canada. The case of John McCain was entirely different because he was born in a U.S. territory (the Panama Canal Zone) and to U.S. parents who were serving the U.S. military. The argument for Cruz rests on some old statutes, namely English statutes enacted before the U.S. Constitution and U.S. statutes enacted just after. But neither turns out to be persuasive on closer examination. The English statutes extended natural-born status to persons born abroad whose father was any English subject, rather than only a public official. Some argue that the constitutional framers meant to refer to this statutory redefinition of the term “natural born.” But that position contradicts the ordinary meaning that the word “natural” indicates a non-statutory meaning. Moreover, Prof. Mary McManamon offers convincing evidence that the Framers meant the common law meaning. James Madison himself said in 1789 that the U.S. used the place of birth rather than parentage. In any event, Cruz’s father was not a U.S. citizen when he was born (again unlike McCain), so these English statutes do not help Cruz. The U.S. statute in 1790 provided that “children of citizens of the United States” that are born abroad “shall be considered as natural born Citizens.” This has been thought the strongest evidence for Cruz’s position since so many 1790 congressmen had participated in the Constitutional Convention. However, this statute did not say these children were natural-born citizens. It instead carefully said they “shall be considered as” natural-born citizens, suggesting that Congress thought they were not natural-born citizens but should be treated as such. Indeed, there would have been no need to pass the statute if they were already understood to be natural-born citizens. Further, when this Act was reconsidered in a few years, Madison himself pointed out that Congress only had constitutional authority to naturalize aliens, not U.S. citizens, and reported a bill that amended the statute to eliminate the words “natural born” and simply state that “the children of citizens of the United States” born abroad “shall be considered as citizens.” This indicates that Madison’s view was that children born abroad of U.S. citizens were naturally aliens, rather than natural born citizens, and thus could be naturalized by Congressional statute but should not be called “natural born.” Congress adopted this amendment in 1795.
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#6. To: Vicomte13 (#4)
He's a citizen of both Canada and the USA, but a natural born citizen of only Canada.
WOW! Harvard Law! Isn't that were various Kennedy's and Bathhouse Barry got their law degrees? BOYCOTT PAYPAL AND CLOSE YOUR PP ACCOUNTS NOW! ENCOURAGE OTHERS TO DO SO,TOO! ISLAM MEANS SUBMISSION! Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012) American Indians had open borders. Look at how well that worked out for them.
He's a natural born citizen of the USA. His mother was a citizen, and under the law at the time of his birth, Cruz was, therefore, a citizen. The law wasn't that when Obama was born, so it's an interesting question. But the law WAS that when Cruz was born, so it's clear: he was born a citizen. That's what natural born means. The opposite of natural born in naturalized. You don't agree? Litigate it and win.
Logic.
Correct. Just not a natural born citizen since he wasn't born here.
Meaning you made it up.
Natural born is not defined anywhere as being born here. Truth: this has never been litigated. Therefore, there is no answer that is certain. There is a logical answer, I've given it. Two kinds of citizens : Natural born versus naturalized. And there's the political answer - the answer most likely to be given by the federal courts, and I've given it: Cruz is natural born - OBama is natural born if born in Hawaii, but perhaps naturalized if born in Kenya. And then there are all of the speculative answers. The TRUE answer will be whatever the Supreme Court decides once it has been litigated. If it's never litigated, then the answer is the facts on the ground. If Cruz is elected and takes office, he's natural born until somebody wins a Supreme Court case that says otherwise, or the Constition is amendeed.
As have you - everything you've said. There is no controlling legal authority - none. It's never been litigated. There is a logic to the law, and I'm better placed than most to know that logic, given that I've studied law, graduated with honors, practiced for a long time, been admitted in two states and before two federal courts. There is no final answer until the Supremes rule, and there's no case before them. So anybody can say whatever he'd like. I think that if it went before the federal courts, they would rule that born a citsen = natural born. No other decision would fit the logic of the law. For all of the energy put into arguing originalism, originalism is not the law of the land, never has been, and unless Trump is elected and puts originalists on the court, probably never ever will be. So, what Vattel said in 1768 is completely irrelevant.
Never happen - he loves Kelo. A government strong enough to impose your standards is strong enough to ban them.
Three kinds of citizens: Natural born, naturalized, and born abroad to citizen parents. Cruz is the third kind. "Therefore, there is no answer that is certain." Correct. And given the uncertainty, who will vote for someone who may be disqualified?
Even 30 Rock got it right:
All of the Cruz supporters. Republicans whose heads are screwed on with bolts. Nobody else. Cruz will never be President. There's no point spending any time speculating about it. He is eminently detestable, and detested by everybody who has had to work with him. Hillary, or Sanders, will beat him like a drum.
He has said that he likes justices like Scalia. He will appoint conservative justices. Scalia opposed Kelo.
He will appoint conservative justices. Scalia opposed Kelo. I'm not sure Trump knows that Scalia opposed Kelo. A government strong enough to impose your standards is strong enough to ban them.
He was natural born in Canada and the USA? That's a first. Looking forward to the bumper sticker: Cruz, Natural Born Twice!
Cite?
www.breitbart.com/video/2...-eminent-domain-even-for-private- projects-is-wonderful-thing-youre-not-taking-property/ : Republican presidential candidate Donald Trump argued that eminent domain, including for private projects that “employ thousands of people” is “a wonderful thing” in an interview broadcast on Tuesday’s “Special Report” on the Fox News Channel. Trump stated, “I think eminent domain is wonderful, if you’re building a highway, and you need to build, as an example, a highway, and you’re going to be blocked by a hold-out, or, in some cases, it’s a hold-out, just so you understand, nobody knows this better than I do, because I built a lot of buildings in Manhattan, and you’ll have 12 sites and you’ll get 11 and you’ll have the one hold-out and you end up building around them and everything else, okay? So, I know it better than anybody. I think eminent domain for massive projects, for instance, you’re going to create thousands of jobs, and you have somebody that’s in the way, and you pay that person far more — don’t forget, eminent domain, they get a lot of money, and you need a house in a certain location, because you’re going to build this massive development that’s going to employ thousands of people, or you’re going to build a factory, that without this little house, you can’t build the factory. I think eminent domain is fine.” Trump was then asked for his past support for the Supreme Court’s ruling on eminent domain in Kelo v. New London, he stated, “Eminent domain — number one, a person has a house, and they end up getting much more than the house is ever worth. You know, eminent domain is not like you — they take your house.” He added, “if you have a road or highway, you gotta do it. If you have a factory where you have thousands of jobs, and you need eminent domain, it’s called economic development.” A government strong enough to impose your standards is strong enough to ban them.
Thanks. Another reason to vote for Trump. He's more of an originalist than Scalia was.
Canadian, Cuban, and American. Throw a dart at a map of north america, and the odds are that Teddy is a "natural born citizen" there. If you don't have a clue what Natural Born Citizen means. If he's a natural born citizen of the US because of his American mother, he's also a natural born citizen of Cuba because of his Cuban father? He can run for el presidente of Cuba too! Good point. Cruz, Natural Born Thrice!
Like Trump said, if you were in favor of the Keystone Pipeline you were in favor of eminent domain.
As the Founders and Framers intended.
Cite? A government strong enough to impose your standards is strong enough to ban them.
32 U.S. (7 Pet.) 243 (1833)
That depends entirely on Cuban law. If his mother was an American citizen and the law of the USA at the time he was born said that he was an American citizen, then he was natural born. Being born on a given piece of dirt is irrelevant - unless it's THIS dirt, THEN, because of the 14th Amendment, he'd be natural born even if BOTH of his parents were foreign citizens (unless they had diplomatic immunity and were not, as a result, "subject to the jurisdiction of the United States").
United States v. Wong Kim Ark, 169 U.S. 649 (1898) excluded the children of invaders from automatic citizenship. Of course, the Rats and the GOPe will never treat the invaders as invaders,
That was before the Fourteenth Amendment; since then, see 166 U.S. 226, 233, 236-37 (1897).
A government strong enough to impose your standards is strong enough to ban them.
The 14th Amend. says nothing about eminent domain. Or incorporation. In Kelo, the Court effectively chose to protect original intent.
BTW, you didn't bother to actually read the decision, did you? The Chicago, Burlington & Quincy Railroad Company lost big time, with the Court holding, "The requirement that compensation be made for private property taken for public use imposes no restriction upon the inherent power of the State by reasonable regulations to protect the lives and secure the safety of the people."
Yes. It is also just the Americanized version of of the English natural born subject. Also, in the early use of the term by John Jay, it was written "natural born citizen," giving clear emphasis to the word born.
Illegal aliens are not invaders. They're illegal immigrants. You don't employ invaders in businesses and homes. But look, it's easy to get the answers to all of these things: litigate them, and send them up to the Supreme Court. Who wins the election will determine who controls the court, and how the court answers. So, it's Hillary or Trump who will decide. You pretty much know how Hillary will decide most things, and Trump.
The fight will be endless until it's settled by litigation...or by it not mattering. By the "Immaculate Conception" theory of natural birth, both parents have to be born on US soil of US-soil-born parents for a child to be natural born. Trump's mother comes from Scotland, so according to some cranks he's not natural born either. And even if the Supreme Court rules that he is, some cranks will take the position that this was not "the original intent" (as if they know what the founders "intended") and still won't accept somebody who wasn't "immaculately conceived" as natural brn
2. it's easy to get the answers to all of these things: litigate them, and send them up to the Supreme Court. 1. Criminals do. It's illegal to employ them in businesses and homes. 2. Nope. It's a political question. Congress could and should declare them invaders.
It's a political question. Congress could and should declare them invaders. There are insufficient votes in Congress to do anything like that. Congress is moving in the opposite direction.
Yep. Too many cucks.
United States v. Wong Kim Ark, 169 U.S. 649 was decided in 1898. I'm curious. When did you think the 14th amendment was ratified?
Its "interpretation" mutates from moment to moment.
Ratified in 1868, it took the U.S. Supreme Court 100 years to come to the conclusion that, hey, the 14th amendment means the BOR applies to the states.
My citing that case had nothing to do with the specific plaintiff ... nor is there any evidence on the table tha any of Trump's uses of eminent domain have done anything "to protect the lives and secure the safety of the people." A government strong enough to impose your standards is strong enough to ban them.
Relevance? A government strong enough to impose your standards is strong enough to ban them.
Comments (46 - 95) not displayed.
Top • Page Up • Full Thread • Page Down • Bottom/Latest"Of both Canada and the USA."
#7. To: lana (#0)
#8. To: misterwhite (#6)
#9. To: misterwhite (#5)
Says who?
#10. To: Vicomte13 (#8)
"His mother was a citizen, and under the law at the time of his birth, Cruz was, therefore, a citizen."
#11. To: Vicomte13 (#9)
Says who?
Logic.
#12. To: misterwhite (#10)
#13. To: misterwhite (#11)
(Edited)
Meaning you made it up.
#14. To: Vicomte13 (#13)
unless Trump is elected and puts originalists on the court
#15. To: Vicomte13 (#12)
"Two kinds of citizens : Natural born versus naturalized."
#16. To: Vicomte13 (#13)
#17. To: misterwhite (#15)
who will vote for someone who may be disqualified?
#18. To: ConservingFreedom (#14)
Never happen - he loves Kelo.
#19. To: Vicomte13 (#18)
He has said that he likes justices like Scalia.
#20. To: Vicomte13 (#4)
Of both Canada and the USA.
#21. To: ConservingFreedom (#14)
he loves Kelo.
#22. To: Roscoe (#21)
#23. To: ConservingFreedom (#22)
#24. To: lana, *Bill of Rights-Constitution* (#0)
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#25. To: hondo68 (#24)
If he's a natural born citizen of the US because of his American mother, he's also a natural born citizen of Cuba because of his Cuban father?
#26. To: Roscoe (#23)
#27. To: misterwhite (#26)
#28. To: Roscoe (#27)
As the Founders and Framers intended.
#29. To: ConservingFreedom (#28)
#30. To: hondo68 (#24)
f he's a natural born citizen of the US because of his American mother, he's also a natural born citizen of Cuba because of his Cuban father?
#31. To: Vicomte13 (#30)
because of the 14th Amendment, he'd be natural born even if BOTH of his parents were foreign citizens
#32. To: Roscoe (#29)
#33. To: ConservingFreedom (#32)
That was before the Fourteenth Amendment
#34. To: ConservingFreedom (#32)
166 U.S. 226, 233, 236-37 (1897).
#35. To: Vicomte13, lana (#1)
Natural Born is in contradistinction to naturalized.
#36. To: Roscoe (#31)
United States v. Wong Kim Ark, 169 U.S. 649 (1898) excluded the children of invaders from automatic citizenship. Of course, the Rats and the GOPe will never treat the invaders as invaders,
#37. To: nolu chan (#35)
Yes. It is also just the Americanized version of of the English natural born subject. Also, in the early use of the term by John Jay, it was written "natural born citizen," giving clear emphasis to the word born.
#38. To: Vicomte13 (#36)
1. You don't employ invaders in businesses and homes.
#39. To: Roscoe (#38)
#40. To: Vicomte13 (#39)
There are insufficient votes in Congress to do anything like that.
#41. To: ConservingFreedom (#32)
(Edited)
"That was before the Fourteenth Amendment"
#42. To: misterwhite (#41)
When did you think the 14th amendment was ratified?
#43. To: Roscoe (#42)
"Its "interpretation" mutates from moment to moment."
#44. To: Roscoe (#34)
The Chicago, Burlington & Quincy Railroad Company lost big time, with the Court holding, "The requirement that compensation be made for private property taken for public use imposes no restriction upon the inherent power of the State by reasonable regulations to protect the lives and secure the safety of the people."
#45. To: misterwhite (#41)
United States v. Wong Kim Ark, 169 U.S. 649 was decided in 1898.
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