life in and around NYC is insane

Friday, February 5, 2016

Hoist on their own petard

Ah, the birther movement. Those right wing nut jobs who insisted, over and over, that Barack Obama was not eligible to be President of the United States.  They insisted that Obama's birth certificate, duly recorded by the appropriate authorities in the State of Hawaii, was a forgery, and that Obama was actually born in Kenya, the homeland of his father.

How delightful to see that their favorite son, Ted Cruz, has a legitimate "birther" issue.  Cruz has been a citizen since birth, but is he a "natural born citizen" as is required by the Constitution?  Or is he disqualified from serving as President?

Yeah, I know, I don't usually talk politics here.  But this is too good to ignore....

The State of Illinois Board of Elections recently answered the question in response to a challenge from the voters:  Cruz is a "natural born citizen".  I don't think it's going to stop with the Illinois Board of Elections.  Prepare for the onslaught if Cruz continues to rack up delegates.

The question was raised with other candidates, of course.  Barry Goldwater was born in Arizona, but before it became a state.  John McCain was born on a US Navy base in the Panama Canal Zone.  George Romney was born in Mexico to American citizen parents.

Cruz has a slightly different story.  His mother was born in Delaware.  But his father was born in Cuba, became a naturalized Canadian citizen in 1973, and later renounced his Canadian citizenship when he became a naturalized American citizen.  The Cruzes met in Texas, but were living in Canada when Ted was born in 1970.

All legal authorities acknowledge that Ted was a Canadian citizen and  a US citizen at the time of his birth.  (He has since renounced his Canadian citizenship.)   But being  "citizen at birth" and being a "natural born citizen" are not necessarily the same.

This article from the Washington Post explains the two legal theories:  Ted Cruz and that ‘natural born citizen’ requirement: What were the Founding Fathers afraid of?

According to the authors of a recent Harvard Law Review article:

“All the sources routinely used to interpret the Constitution confirm that the phrase ‘natural born Citizen’ has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.” The fact that Ted Cruz’s mother was a citizen, by this standard, means that despite his birth in Canada, he is eligible.

In other words, the laws enacted by Congress essentially define a "natural born citizen" as one who is a citizen by birth, regardless of where the person was born.

But a professor from Delaware Law School argued that:

“The concept of ‘natural born’ comes from common law, and it is that law the Supreme Court has said we must turn to for the concept’s definition. On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are ‘such as are born within the dominions of the crown of England,’ while aliens are “such as are born out of it.'”

In other words, the Founding Fathers would have understood a "natural born citizen" to be one who was born within the United States.  Cruz had citizenship conferred on him at birth by operation of law, and is not a "natural born citizen" under the definition understood in the 18th Century.

The Illinois Board of Elections ruled that:

“The Candidate is a natural born citizen by virtue of being born in Canada to his mother who was a U.S. citizen at the time of his birth,” the board stated, saying that Cruz “did not have to take any steps or go through a naturalization process at some point after birth,” adding, “Further discussion on this issue is unnecessary.”

 I guess they agree with the scholars at Harvard.

And then there's Laurence Tribe.    Professor Tribe has been teaching Constitutional Law at Harvard since forever.  He's recognized as one of the leading experts in the field.  Ted Cruz was his student.  So was Barack Obama.  I've been reading Tribe since my law school days.  I follow him on Twitter. 

Tribe had a rather interesting article in The Boston Globe the other day:  Under Ted Cruz’s own logic, he’s ineligible for the White House  Tribe points out that Cruz is an "originalist", except on this issue, where it is to Cruz' benefit to tout a more liberal view of the Constitution. 

Tribe states:  There’s more than meets the eye in the ongoing dustup over whether Ted Cruz is eligible to serve as president, which under the Constitution comes down to whether he’s a “natural born citizen” despite his 1970 Canadian birth. Senator Cruz contends his eligibility is “settled” by naturalization laws Congress enacted long ago. But those laws didn’t address, much less resolve, the matter of presidential eligibility, and no Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a “natural born citizen” is completely unsettled, as the most careful scholarship on the question has concluded...the kind of judge Cruz says he admires and would appoint to the Supreme Court is an “originalist,” one who claims to be bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive....[Cruz] seems to be a fair weather originalist, abandoning that method’s narrow constraints when it suits his ambition.

I must confess, I agree with the esteemed professor. 

This is becoming a very interesting election.

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