Cruz Missiles 04: Eligibility

Part of a series on the attacks on Ted Cruz by blogger Stefan Molyneux in the video “The Truth About Ted Cruz.”  This one deals with the issue of Ted Cruz’s eligibility as a natural born citizen.

Ted Cruz’s Natural Birth

Here is the video portion of interest, at about 22:50 in. You may wish to back up a couple of minutes and listen to his commentary as he develops the points on the screen:

Molyneaux_Cruz_5_02215

As the screen shot points out, Article II Section 1 contains this paragraph:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

No One is Eligible!

I will note with amusement something that I think no one else has ever pointed out: A strict reading of this sentence, using the standard interpretation of a parenthetical clause, would deduce that only people who were alive at the adoption of the Constitution were eligible to be president. The sentence would break down as follows:

  • No Person except a natural born Citizen at the time of the Adoption of this Constitution, or
  • No Person except a Citizen of the United States at the time of the Adoption of this Constitution,

To be eligible, one has to be a citizen (natural born or otherwise) at the time if the adoption which turned out to be 1789. Since all fitting this description died by the mid-to-late 1800s, no one today can be eligible to be president.

No one reads it this way, of course, despite this being literally correct.

Common Law

The law professor suggesting that the Constitution is overridden by a “concept” of “common law” is just wrong. The US Constitution makes clear that it is the supreme law of the land. But her quotation is complete anyway, as we’ll see in a moment.

Also, the language she quotes, “such as are born within the dominions of the crown of England,” self-evidently cannot be the controlling definition, for three reasons: (1) “such as” is not an exhaustive list of possibilities, (2) children of British subjects born overseas are still natural born British citizens, and (3) the “crown of England” does not apply to the US.

How many of our presidents were born within the dominions of the crown of England? Actually, the first few were — but not any more. And yet this definition is being proffered as controlling. It is not.

The Law as of 1790

Molyneux’s last paragraph on this screen is very wrong. Talking about the Naturalization Act of 1790, he states:

Because this form of citizenship comes from law (naturalization) and not the Constitution, it means that such citizens are not “natural born.”

First, there is no evidence to support the idea that, because the citizenship is mentioned in a law, it means not natural born. No such distinction exists.

Second, the word “naturalization” does not mean “comes from law,” it means converting someone who was not previously a citizen to a freshly minted citizen of the country.

Third and most important, Molyneux omits the actual language of the 1790 law for good reason. It says in part:

And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident of the United States…

This is followed by another condition disallowing persons “proscribed” by an individual state. But this shows that the term “natural born citizen” can and did appear in law, applying to one born outside of the US. Molyneux omits that and implies the opposite.

One subtlety and problem is that the 1790 law has been updated and replaced several times, detailing the requirements, specifying a minimum age and residency time of the mother, making clear that one citizen parent is enough, and so on. In these replacements, the phrase “natural born” is not used. However, all of them make clear that the person meeting the conditions is a citizen at time of birth and does not need to be “naturalized”; ergo, no other phrase but “natural born citizen” could logically apply.

Competing Opinions are Not Law

Molyneaux_Cruz_6_02400.

Other left-wing law professors offer Vittel’s Law of Nations as the controlling authority, again ignoring the Constitution’s supremacy clause. They cannot both be right (i.e., the Constitution’s phrase cannot be overridden by two contradictory sources at the same time), and in fact both are wrong.

Molyneux quotes only “authorities” who seem to share the opinion that Cruz is not eligible (through we’ll see a problem here in a moment). He does not quote any other legal opinions that state that Cruz is eligible, because that would work against his case. He’s even quoting Ann Coulter (whom he despises) with approval, as if she were an unbiased opinion on a political candidate.

But there are lots of professors who argue in favor of Ted Cruz’s eligibility. One of them, oddly, is Laurence Tribe — the Harvard law professor who called Ted Cruz his most brilliant student. A careful reading of this article would show that Tribe believes that Cruz is a natural born citizen, but that he thinks that Cruz’s “originalist” interpretation of the Constitution would reach a different result. As the Harvard Crimson notes:

Tribe insists that his motivations were not political; despite airing his liberal views openly, Tribe has not endorsed a candidate. Furthermore, he maintains that according to his own “living constitutionalist” method of interpretation—a more flexible reading of the Constitution—Cruz should be able to run for the presidency.

He is wrong about Cruz’s interpretation of the original Constitution, but evidently because he’s been reading others’ cherry picked excerpts of legal authorities. In fact, the much-touted British Common Law actually holds the key: In Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, Volume I:

“Of the Rights of Persons,” 354-358, 361 (1765): “ … by several more modern statutes … all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.” As noted by the Supreme Court in Weedin v. Chin Bow, 274 U.S. 657, 660 (1926): “These statutes applied to the colonies before the War of Independence.” For early references to the term natural liege subjects in the American colonies, see Sydney George Fisher, THE EVOLUTION OF THE CONSTITUTION OF THE UNITED STATES, (Lippincott 1897) at 189, citing the Virginia Charter of 1611-1612, and the Concessions of East Jersey, 1665.

This provision, that children born overseas to British fathers are “natural-born subjects,” was already more than 400 years old at the time of the Constitution’s framing and adoption. All the US did to change this was (later) to broaden “father” to “either parent” — and that is how matters still stand today.

The above quoted paragraph is from a Congressional Research Office report commissioned in 2011 (Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement) due to the question arising in connection with Obama and McCain. That PDF is available here, and concludes that birth overseas to a qualifying US parent establishes eligibility. Cruz can run.

Applicable Law

Molyneux quotes law professors who don’t think Cruz is eligible. He does not quote the law professors who believe that he is (with the exception of Tribe, whose real opinion Molyneux decided not to mention). And Molyneux refers to English law (incompletely), which does not apply and is clearly wrong as the Act of 1790 makes clear.

Similarly, various anti-Cruz websites will quote from Vittel’s Law of Nations, stating that the Framers were familiar with it and thus natural born means born inside the US. First, Vittel’s Law of Nations wasn’t even that clear about it, using “such as” in its description and never omitting other possibilities, and second, many of those same Framers of the Constitution were members of the House and Senate who passed the 1790 Act above defining a person born “beyond sea” as a natural born citizen. Thus, they could not have considered themselves bound by any such understanding of the Law of Nations, which has no force or effect in the US in any event. The Blackstone commentary discussed earlier makes this clear.

Suitable

Finally, we have the issue of lawsuits. Trump and other foolish persons have said that Cruz will be tied up in court with lawsuits over his eligibility. In fact, Trump has now threatened to bring suit himself if Ted Cruz continues to be “mean” to him. The poor fella.

But this threat of suits did not stop Barack Obama, who had flatly stated that he was born in Kenya in the author blurb of his book publisher. He allowed that blurb to stand for 17 years until preparing to run for president. (Obama’s mother was not old enough to convey citizenship the way Cruz’s mother was.) So, several lawsuits were brought alleging that Obama was ineligible; all were thrown out.

There are two issues with such suits. First is a “lack of standing”; you have to demonstrate that you are personally harmed among other things. The lower courts tossed the Obama cases out on this basis. Second, there is a long-standing tradition that the Court will not wade in to “political questions” which is why this issue has not been resolved by a SCOTUS ruling prior to this point.

A number of presidential candidates have been born overseas; perhaps the most famous recent example (besides John McCain, born in the Panama Canal Zone) is Mitt Romney’s father, the Mexican-born governor of Michigan who ran for president in 1964 and 1968 (in which he was the front runner for a while). He was born to Americans (Mormon missionaries in Mexico) and was thus a natural born citizen as well as a “dual citizen” of both Mexico and the US. Being born outside the US was not a problem.

It still isn’t.

===|==============/ Keith DeHavelle

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