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, Cruzs 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 Cruzs 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 Madisons 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.
#1: Vicomte13 To: lana (#0)
Cruz is a natural born citizen. So is Rubio. Whether or not Obama is depends on a question of law that has never been answered. Logically he is not.
Vicomte13 posted on 2016-04-06 15:29:48 Reply Private Reply
#2: BorisY To: lana (#0)
you
know
we're
a
democracy
ebonics
is
the
official
language
law
now
love
boris
BorisY posted on 2016-04-06 15:30:47 Reply Private Reply
#3: Roscoe To: Vicomte13 (#1)
Of Canada.
Roscoe posted on 2016-04-06 15:32:52 Reply Private Reply
#4: Vicomte13 To: Roscoe (#3)
Vicomte13 posted on 2016-04-06 15:40:12 Reply Private Reply
#5: misterwhite To: Vicomte13 (#1)
Says who?
misterwhite posted on 2016-04-06 15:48:14 Reply Private Reply
#6: misterwhite To: Vicomte13 (#4)
He's a citizen of both Canada and the USA, but a natural born citizen of only Canada.
misterwhite posted on 2016-04-06 15:50:15 Reply Private Reply
#7: sneakypete To: lana (#0)
Isn't that were various Kennedy's and Bathhouse Barry got their law degrees?
sneakypete posted on 2016-04-06 15:52:43 Reply Private Reply
#8: Vicomte13 To: misterwhite (#6)
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.
Vicomte13 posted on 2016-04-06 16:02:23 Reply Private Reply
#9: Vicomte13 To: misterwhite (#5)
Logic.
Vicomte13 posted on 2016-04-06 16:02:49 Reply Private Reply
#10: misterwhite To: Vicomte13 (#8)
Correct. Just not a natural born citizen since he wasn't born here.
misterwhite posted on 2016-04-06 16:05:41 Reply Private Reply
#11: misterwhite To: Vicomte13 (#9)
Meaning you made it up.
misterwhite posted on 2016-04-06 16:08:35 Reply Private Reply
#12: Vicomte13 To: misterwhite (#10)
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.
Vicomte13 posted on 2016-04-06 16:09:38 Reply Private Reply
#13: Vicomte13 To: misterwhite (#11)
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.
Vicomte13 posted on 2016-04-06 16:13:03 Reply Private Reply
#14: ConservingFreedom To: Vicomte13 (#13)
Never happen - he loves Kelo.
ConservingFreedom posted on 2016-04-06 16:16:17 Reply Private Reply
#15: misterwhite To: Vicomte13 (#12)
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?
misterwhite posted on 2016-04-06 16:20:58 Reply Private Reply
#16: misterwhite To: Vicomte13 (#13)
misterwhite posted on 2016-04-06 16:26:04 Reply Private Reply
#17: Vicomte13 To: misterwhite (#15)
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.
Vicomte13 posted on 2016-04-06 16:26:52 Reply Private Reply
#18: Vicomte13 To: ConservingFreedom (#14)
He has said that he likes justices like Scalia.
He will appoint conservative justices. Scalia opposed Kelo.
Vicomte13 posted on 2016-04-06 16:28:45 Reply Private Reply
#19: ConservingFreedom To: Vicomte13 (#18)
I'm not sure Trump knows that Scalia opposed Kelo.
ConservingFreedom posted on 2016-04-06 16:34:51 Reply Private Reply
#20: Roscoe To: Vicomte13 (#4)
He was natural born in Canada and the USA? That's a first.
Looking forward to the bumper sticker: Cruz, Natural Born Twice!
Roscoe posted on 2016-04-06 16:48:04 Reply Private Reply
#21: Roscoe To: ConservingFreedom (#14)
Cite?
Roscoe posted on 2016-04-06 16:49:12 Reply Private Reply
#22: ConservingFreedom To: Roscoe (#21)
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 Tuesdays Special Report on the Fox News Channel.
Trump stated, I think eminent domain is wonderful, if youre building a highway, and you need to build, as an example, a highway, and youre going to be blocked by a hold-out, or, in some cases, its a hold-out, just so you understand, nobody knows this better than I do, because I built a lot of buildings in Manhattan, and youll have 12 sites and youll get 11 and youll 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, youre going to create thousands of jobs, and you have somebody thats in the way, and you pay that person far more dont forget, eminent domain, they get a lot of money, and you need a house in a certain location, because youre going to build this massive development thats going to employ thousands of people, or youre going to build a factory, that without this little house, you cant build the factory. I think eminent domain is fine.
Trump was then asked for his past support for the Supreme Courts 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, its called economic development.
ConservingFreedom posted on 2016-04-06 17:06:33 Reply Private Reply
#23: Roscoe To: ConservingFreedom (#22)
Roscoe posted on 2016-04-06 17:15:56 Reply Private Reply
#24: Hondo68 To: lana, *Bill of Rights-Constitution* (#0)
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!
Hondo68 posted on 2016-04-06 17:16:54 Reply Private Reply
#25: Roscoe To: hondo68 (#24)
Good point. Cruz, Natural Born Thrice!
Roscoe posted on 2016-04-06 17:19:40 Reply Private Reply
#26: misterwhite To: Roscoe (#23)
misterwhite posted on 2016-04-06 17:22:23 Reply Private Reply
#27: Roscoe To: misterwhite (#26)
Roscoe posted on 2016-04-06 17:23:59 Reply Private Reply
#28: ConservingFreedom To: Roscoe (#27)
Cite?
ConservingFreedom posted on 2016-04-06 17:29:15 Reply Private Reply
#29: Roscoe To: ConservingFreedom (#28)
Roscoe posted on 2016-04-06 17:30:05 Reply Private Reply
#30: Vicomte13 To: hondo68 (#24)
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").
Vicomte13 posted on 2016-04-06 17:41:03 Reply Private Reply
#31: Roscoe To: Vicomte13 (#30)
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,
Roscoe posted on 2016-04-06 17:44:25 Reply Private Reply
#32: ConservingFreedom To: Roscoe (#29)
ConservingFreedom posted on 2016-04-06 17:51:30 Reply Private Reply
#33: Roscoe To: ConservingFreedom (#32)
The 14th Amend. says nothing about eminent domain. Or incorporation.
In Kelo, the Court effectively chose to protect original intent.
Roscoe posted on 2016-04-06 18:06:52 Reply Private Reply
#34: Roscoe To: ConservingFreedom (#32)
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."
Roscoe posted on 2016-04-06 18:20:30 Reply Private Reply
#35: nolu chan To: Vicomte13, lana (#1)
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.
nolu chan posted on 2016-04-06 18:22:32 Reply Private Reply
#36: Vicomte13 To: Roscoe (#31)
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.
Vicomte13 posted on 2016-04-06 18:27:34 Reply Private Reply
#37: Vicomte13 To: nolu chan (#35)
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
Vicomte13 posted on 2016-04-06 18:31:08 Reply Private Reply
#38: Roscoe To: Vicomte13 (#36)
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.
Roscoe posted on 2016-04-06 18:33:24 Reply Private Reply
#39: Vicomte13 To: Roscoe (#38)
There are insufficient votes in Congress to do anything like that. Congress is moving in the opposite direction.
Vicomte13 posted on 2016-04-06 18:35:24 Reply Private Reply
#40: Roscoe To: Vicomte13 (#39)
Yep. Too many cucks.
Roscoe posted on 2016-04-06 18:39:28 Reply Private Reply
#41: misterwhite To: ConservingFreedom (#32)
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?
misterwhite posted on 2016-04-06 18:42:21 Reply Private Reply
#42: Roscoe To: misterwhite (#41)
Its "interpretation" mutates from moment to moment.
Roscoe posted on 2016-04-06 18:46:48 Reply Private Reply
#43: misterwhite To: Roscoe (#42)
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.
misterwhite posted on 2016-04-07 08:44:07 Reply Private Reply
#44: ConservingFreedom To: Roscoe (#34)
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."
ConservingFreedom posted on 2016-04-07 10:08:22 Reply Private Reply
#45: ConservingFreedom To: misterwhite (#41)
Relevance?
ConservingFreedom posted on 2016-04-07 10:09:46 Reply Private Reply
#46: Roscoe To: ConservingFreedom (#44)
Or the issue being discussed.
Roscoe posted on 2016-04-07 10:19:29 Reply Private Reply
#47: ConservingFreedom To: Roscoe (#33)
I'll take the Court's reasoning over your say-so: "Due process of law, as applied to judicial proceedings instituted for the taking of private property for public use means. therefore, such process as recognizes the right of the owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used into due proces of law, if the necessary result be to deprive him of his property without compensation."
ConservingFreedom posted on 2016-04-07 10:19:53 Reply Private Reply
#48: Roscoe To: ConservingFreedom (#47)
The 14th Amend. says nothing about eminent domain. Or incorporation.
And the Court's reasoning in Kelo laughed at your position.
Roscoe posted on 2016-04-07 10:22:30 Reply Private Reply
#49: misterwhite To: ConservingFreedom (#45)
You said that case was decided before the 14th amendment. What's relevant is that you were wrong.
misterwhite posted on 2016-04-07 10:26:15 Reply Private Reply
#50: Roscoe To: misterwhite (#49)
Roscoe posted on 2016-04-07 10:30:56 Reply Private Reply