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Saturday, July 9, 2016

Carmon Elliott Files a Petition for a Writ of Certiorari to the U.S. Supreme Court on Ted Cruz Not Being a Natural Born Citizen



Carmon Elliott Files a Petition for a Writ of Certiorari to the U.S. Supreme Court on Ted Cruz Not Being a Natural Born Citizen
By Mario Apuzzo, Esq.
July 9, 2016

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On June 28, 2016, I filed on behalf of Pennsylvania resident Carmon Elliott a Petition for a Writ of Certiorari with the U.S. Supreme Court.  The Petition can be accessed at https://www.scribd.com/document/317863645/Petition-for-a-Writ-of-Certiorari-Elliott-v-Cruz-Filed-6-28-16 .  The Court docketed the Petition on June 30, 2016.  Ted Cruz’s response to the petition is due by August 1, 2016.  The U.S. Supreme Court docket can be read at http://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-13.htm .   
The parties stipulated in the Commonwealth Court of Pennsylvania that Cruz was born on December 22, 1970, in Calgary, Alberta, Canada; that his mother, Eleanor Darragh, was born on November 23, 1934, in the State of Delaware; that his mother is and has always been a U.S. citizen from the moment of her birth; that at the time of Cruz’s birth, his mother had been physically present in the United States for more than ten years, including at least five years after she reached the age of fourteen; and that Cruz was a citizen at birth.  
Elliott filed a petition with the Pennsylvania Secretary of State to set aside the nomination petition of Ted Cruz pursuant to which he sought to appear on the April 26, 2016 primary election ballot for the Office of the President.  In his objection, petitioner alleged that given that Cruz was born out of the territory and jurisdiction of the United States, his name should be stricken from the Pennsylvania 2016 primary ballot because he is not a “natural born citizen” within the meaning of Article II, Section 1, Clause 5 of the United States Constitution.   
Cruz filed his opposition, contending that Elliott’s objection raised a non-justiciable political question.  As to the merits, Cruz contended that a person born to at least one U.S. citizen parent, regardless of where the child may be born, if a citizen at birth under any law, is an Article II natural born citizen through inheritance of citizenship from the parent (jus sanguinis) and without needing to be born in the United States (jus soli).     
The lower court ruled that the political question doctrine did not apply and then went on to decide the merits of Elliott’s objection.  After discussing some articles written by some authorities, the court held that: “Having extensively reviewed all articles cited in this opinion, as well as many others, this Court holds, consistent with the common law precedent and statutory history, that a ‘natural born citizen’ includes any person who is a United States citizen from birth.  Accordingly, because he was a citizen of the United States from birth, Ted Cruz is eligible to serve as President of the United States, and the objection filed by Carmen Elliott to the Nomination Petition of Ted Cruz is denied.”         
Elliott appealed the Order of the Commonwealth Court of Pennsylvania to the Pennsylvania Supreme Court, which affirmed that Order on March 31, 2016, and also denied Victor William’s Notice to Intervene as Appellant and Elliott’s application for oral argument. 
In our Petition to the U.S. Supreme Court, we argue that the Pennsylvania Supreme Court has decided an important question of constitutional law concerning the definition of an article II natural born citizen that has not been but should be settled by the U.S. Supreme Court.  Having a person sit as President and Commander in Chief of the Military who is not a natural born citizen puts the national security of the United States vitally at risk.  Whether or not the President and Commander in Chief is legitimately sitting in those offices impacts the nation’s foreign policy.  The nation needs a definition of “natural born citizen” for future presidential and vice presidential elections.  Congress, the executive, the political parties, and the voters cannot define a natural born citizen.  Only the judiciary can define a natural born citizen.    
We argue that the Pennsylvania Supreme Court has decided an important constitutional question in a way that conflicts with relevant decisions of the U.S. Supreme Court.  Under those precedents, Cruz is at best a naturalized citizen of the United States “at birth,” but only by virtue of a naturalization Act of Congress, not an Article II natural born citizen under the common law to which the Framers looked to define the clause when they drafted and adopted the Constitution.   
We also argue that U.S. Supreme Court review is warranted because the Commonwealth of Pennsylvania and it Secretary of State, by allowing an ineligible presidential candidate to place his name on the presidential primary election ballot, has violated Elliott’s Fifth and Fourteenth Amendment right and privilege to life, liberty, and property and equal protection of the law which is implicated if Elliott is forced to live under a president who is not an Article II natural born citizen. 
Finally, we maintain that the important constitutional issue raised by Elliott’s ballot challenge has not been mooted by Cruz voluntarily suspending his presidential campaign because there is nothing stopping Cruz from again running for President or Vice-President and the issue of whether Cruz is a natural born citizen is capable of repetition yet evading review.  
We urge Americans who are committed to having our politicians and government respect our Constitution and the rule of law to support our cause.  Express yourselves not only privately, but also in public.  Write letters and leave comments in print and electronic media.  Call into radio shows and tell the hosts what you think.  Mr. Elliott is also conducting a fund raising campaign to raise funds to meet our printing and filing expenses.  We will appreciate your contribution which you can make at https://www.gofundme.com/h3xff4m4   .  
I will be posting updates as the Petition makes its way to a decision by the U.S. Supreme Court. 

Mario Apuzzo, Esq.
July 9, 2016
http://puzo1.blogspot.com
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Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved  


Monday, March 7, 2016

Ted Cruz: Neither a Natural Born Citizen Nor “TrusTed”



Ted Cruz:  Neither a Natural Born Citizen Nor “TrusTed”

By Mario Apuzzo, Esq.
March 5, 2016

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“TrusTed” (one of his campaign slogans) Ted Cruz, born in a foreign nation to an alien father, is running for President.  Eligibility to be elected President is found in Article II, Section 1, Clause 5 which provides:  "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."  Since Cruz was born in 1970, he must be not only a “citizen” of the United States, but a “natural born citizen” of the United States in order to be eligible to be elected President.  So, is Cruz a natural born citizen?  The answer is “no.” 

Rules of Constitutional Construction

In interpreting what natural born citizen means, we should be reminded of what Thomas Jefferson said regarding how the Constitution should be interpreted regarding the jurisdiction of the states versus the jurisdiction of the national government:  

It may be impracticable to lay down any general formula of words which shall decide at once, and with precision in every case, this limit of jurisdiction, but there are two Canons which will guide us safely in most of the cases . . . . 2 on every question of construction [of the Constitution] carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, & instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was past" [sic]. 

Thomas Jefferson, in his letter to William Johnson, dated June 12, 1823 from Monticello.   https://www.loc.gov/resource/mtj1.053_0998_1005/?sp=7  . 

"It is never to be forgotten that in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument." Ex Parte Bain, 121 U.S. 1, 12 (1887).  "[T]he enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." Gibbons v. Ogden, 22 U. S. 1, 188 (1824).  

Chief Justice John Marshall in his dissent in Ogden laid out the rule of constitutional interpretation thus: 

Much too has been said concerning the principles of construction which ought to be applied to the Constitution of the United States.

On this subject also, the Court has taken such frequent occasion to declare its opinion as to make it unnecessary, at least, to enter again into an elaborate discussion of it. To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance nor extended to objects not comprehended in them, nor contemplated by its framers is to repeat what has been already said more at large and is all that can be necessary.

Odgen v. Saunders, 25 U.S. 213, 332 (1827).  The key to interpreting the Constitution and its natural born citizen clause is finding sources that are relevant to informing on the meaning the Framers and Ratifiers gave to its words and phrases and particularly that clause and how that meaning thus shaped the understanding of the people for whose benefit the Constitution was ratified.

There are also some rules that our U.S. Supreme Court has established to accomplish the task.

“It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). “In expounding the Constitution of the United States, every word must have its due force and appropriate meaning, for it is evident from the whole instrument that no word was unnecessarily used or needlessly added. The many discussions which have taken place upon the construction of the Constitution have proved the correctness of this proposition and shown the high talent, the caution, and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood. No word in the instrument, therefore, can be rejected as superfluous or unmeaning, and this principle of construction applies.”  Holmes v. Jennison, 39 U.S. 540, 570-71 (1840).  Our Supreme Court has consistently expressed "a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment." Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 2133, 109 L.Ed.2d 588 (1990); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Uaw v. Johnson Controls, Inc, 499 U.S. 187, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991) .

Hence, the “natural born citizen” clause of Article II must be given independent effect and meaning from an English “natural born subject” and from the “citizen” of the United States clause of Article I and II itself, the Fourteenth Amendment, and naturalization Act of Congress.  All Presidents must qualify as Article II natural born citizens, not only as Fourteenth Amendment or statutory citizens of the United States.  The two clauses have different and distinct meanings or they would not have their own independent life in the Constitution and Acts of Congress.  Article II says natural born citizen and the Fourteenth Amendment and Acts of Congress say citizen of the United States.  If being a citizen of the United States at birth had the same meaning as being a natural born citizen, then the natural born citizen clause would have no effect and be written out of the Constitution.  Such a construction is not admissible. If we were not to give special meaning to the clause “natural born citizen” and conclude that natural born citizen and born citizen of the United States mean the same thing, the clause natural born citizen would be superfluous. Hence, we have to give special meaning to the clause natural born citizen. 

The U.S. Supreme Court case of District of Columbia v. Heller, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) is very instructive in providing a list of relevant sources and methodology that our U.S. Supreme Court uses for interpreting the Constitution.  There the Court looked to the text of the Constitution itself.  It looked to the structure of the Constitution.  It looked at what state constitutions said and also the Federalist Papers.  It said that debates on the Constitution (pre-enactment statements) are not reliable when interpret the text of the Constitution.  The Court said the debates are not reliable because they do not necessarily reflect the “general understanding of disputed terms.” Rather, the Court said debates can be persuasive given that it can be argued that the people who voted on the legislation probably voted with that understanding in mind.  Id.  The Court said that post ratification commentary are “sources to determine the public understanding of a legal text in the period after its enactment or ratification.” Id.  This inquiry “is a critical tool of constitutional interpretation.”  Id.  This understanding is provided by interpreters of the constitutional provision being examined in the years following its enactment and ratification.  Id.  Apart from analyzing the text of the natural born citizen clause, the structure of the Constitution, and case law, here I will present historical evidence of the type that our courts and legal profession have always relied upon when trying to determine the meaning of a specific clause in the Constitution.  This evidence shows that the Framers and Ratifiers relied upon American common law, which incorporated the citizenship principles of the law of nations and not those of the colonial English common law, for their definition of an Article II natural born citizen.  This evidence shows and the unanimous U.S. Supreme Court in Minor v. Happersett, 88 U.S. 162, 167-68 (1875) confirmed that the definition under that common law upon which the Framers relied for their definition of a natural born citizen was a child born in a country to parents who were its citizens at the time of the child’s birth.  This evidence also shows that neither the Fourteenth Amendment nor U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) or any other decision of the United States Supreme Court has ever changed that definition and therefore it still prevails today.

The Purpose of the Natural Born Citizen Clause

The original Constitution neither defines a citizen nor a natural born citizen.  The debates at both the Constitutional Convention and in the state ratifying conventions also give little information on the meaning of a natural born citizen.  As Jefferson explained in his letter of June 12, 1823, the clause’s meaning can be found in the historical context of English history and the American Revolution and what the Framers sought to accomplish through the clause.  Hence, a correct understanding of a natural born citizen cannot be had unless we analyze the purpose for which the Framers required all persons born after the adoption of the Constitution to be natural born citizens and not just citizens in order to be eligible to be President.  Any reasonable interpretation of the natural born citizen clause cannot thwart the purpose for which the Framers required future Presidents and Commanders in Chief of the Military to be natural born citizens.  Let us now examine what that purpose was and which still has relevance today.  

During the Constitutional Convention, the delegates relied heavily upon historical precedent, emanating from ancient Greece and Rome, the English Glorious Revolution, and recent events from Holland and Germany. 

In England, because of the rules of royal succession, it was not uncommon for the King to be foreign born and therefore a foreigner. In the 1600s, the English crown was held by foreigners.  From the Stuart House, King James VI, was born in Scotland, and by succession became James I, King of England, Ireland, and Scotland.  His son, Charles I, was also born in Scotland.  The Protestant William III, from the German House of Hanover, who came to power during the Glorious Revolution of 1688 and thereby deposed the Catholic James II, was born in Holland.  Following the Glorious Revolution in 1688, two Stuart queens ruled Great Britain, Mary II and Anne (Prince Anne of Denmark), the daughters of James II and VII.  Because of their family's Catholic ties, under the provisions of the 1701 Act of Settlement and the 1704 Act of Security, the crown passed from the House of Stuart to the House of Hanover, which had its seat in Hanover, Germany.  King George I and II were both born in Hanover, Germany.  King George II was the last English monarch to be born out of Great Britain.  The colonies were under the authority of King George III, who was a descendant of the House of Hanover, but born in England.  George, in his accession speech to Parliament, proclaimed: "Born and educated in this country, I glory in the name of Britain".[1] He inserted this phrase into the speech to demonstrate his desire to distance himself from his German
forebears, who were seen as caring more for Hanover than for Britain.[2]

The English did not trust their foreign monarchs.  They deposed James II, who was a Catholic and closely allied with his cousin, Louis XIV of France.  Parliament declared in the Act of Settlement: 

2.  That in case the crown and imperial dignity of this realm shall hereafter come to any person not being a native of this kingdom of England, this nation be not obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of England, without the consent of parliament.    
     
3.  That no person who shall hereafter come to the possession of this crown shall go out of the dominion of England, Scotland, or Ireland without the consent of parliament.

***

5.  That after the said limitation shall take effect as aforesaid, no person born out of the kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a denizen, except such as are born of English parents) shall be capable to be of the privy council, or to enjoy an office or place of trust, either civil or military, or to have any grant of lands, tenements, or hereditaments from the crown to himself or to any other or others in trust for him. [3]

Under the Act of Settlement anyone who became a Roman Catholic or who married one was disqualified to inherit the English crown.  The act also placed limits on the role of foreigners in the British government.[4]   Founders and Framers who were lawyers would have been familiar with these English statutes and come to learn how the British looked upon persons who were  foreigners.   

America had recently fought an independence war with Great Britain, which divided the loyalties of its own people.  So, the Framers knew firsthand how critical undivided loyalty and allegiance were to the future survival of their cause for liberty and the preservation and perpetuation of the new republic.  The Framers commanded that Presidents and Commanders of the Military born after the adoption of the Constitution be natural born citizens to assure that they would be born with those circumstances which would best assure that they would develop the virtue of love of country and thereby be free of monarchical and foreign influence in whatever form it may present itself.  The historical record demonstrates that, with the Office of President being a singular and all-powerful office both civilly and militarily, the Framers took extra measures to keep monarchical and foreign influence out of the Office of President.  Rather than relying upon Congress to elect the President, they gave that power to the Electoral College.  Unlike allowing “citizens” to serve in Congress, they required future Presidents to be “natural born citizens.”  They looked to the natural born citizen clause to assure that the President would in the future protect and preserve the constitutional Republic which they had built.  They sought to achieve this end by requiring that those future Presidents and Commanders be born with unity of citizenship and allegiance to the United States.  They looked upon the natural born citizen clause as a means to accomplish their end. It is not up to us now to second-guess the Framers’ policy decision.  Some want us to believe that after having fought a bloody revolution with Great Britain in order to constitute a republic based on the consent of the governed, and not wanting to return to monarchical rule, the Framers would have allowed children born after the adoption of the Constitution in the United States to British natural born subject parents or out of the territory and jurisdiction of the United States to be eligible for the Office of President and Commander in Chief of the Military. We can ask ourselves whether the Framers would have allowed a child born after the adoption of the Constitution in the United States to English parents or out of the territory and jurisdiction of the United States to be eligible to be President. It is highly unlikely that they would have.  The only way they could have prevented that was to maintain that only those children born in the United States to U.S. citizen parents were natural born citizens.  Hence, that was the Framers’ definition of the clause.  As we shall see below, the historical and legal record confirms that the Framers’ definition of a natural born citizen was just that.

The Constitutional Convention and the Natural Born Citizen Clause

The Constitutional Convention took place in Philadelphia, Pennsylvania at the Pennsylvania State House and lasted from May 25 (when a quorum of seven states was secured) to September 17, 1787.[5]  Alexander Hamilton gave a speech to the Convention on June 18, 1787.  He read to the Convention his Propositions for A Constitution of Government.  See Works of Alexander Hamilton  (page 393); 3 Max Farrand, The Records of the Federal Convention of 1787, at 617 (1911)  (Farrand).  This speech contained a sketch of a plan which has become known as the English Plan.  This plan can be read here, http://avalon.law.yale.edu/18th_century/debates_618.asp .  Hamilton’s plan was not considered because it resembled the British system, with a strong centralized government, an executive serving for life which resembled a monarch, and virtually did away with state sovereignty and consolidated the states into a single nation.  James Madison informed us in his Convention notes that “[i]t meant only to give a more correct view of his ideas, and to suggest the amendment which he should probably propose to the plan of Mr. R. in the proper stages of its future discussion.  Although this plan was not formally before the Convention in any way, several of the delegates made copies . . . Farrand.  at 617.  Hamilton proposed in his Propositions that the "supreme executive authority of the United States to be vested in a Governor. . ." and that he also be the "commander-in-chief. . ."  In this initial sketch, Hamilton did not include any eligibility requirements for the supreme executive authority who he would call the President rather than Governor in his later draft of the Constitution.  In his speech to the Convention, Hamilton advocated an executive for life.  The reason that he gave for such a life position was the following:  “The Hereditary interest of the King was so interwoven with that of the Nation, and his personal emoluments so great, that he was placed above the danger of being corrupted from abroad-and at the same time was both sufficiently independent and sufficiently controuled, to answer the purpose of the institution at home. one of the weak sides of Republics was their being liable to foreign influence & corruption. Men of little character, acquiring great power become easily the tools of intermedling Neibours.”  Id.  Here we can see that Hamilton was very concerned with the harm that could be done to the nation by an executive who was corrupted by foreign influence and intrigue.

This “sketch of a plan of government” was not formally presented to the Convention, but delegates, including James Madison, had various copies of this plan.  Farrand, at 617.  This plan does not include Hamilton’s “born a citizen” language which he included in his later draft of a constitution. 

Before we go forward, let us consider who John Jay is.  John Jay (1745-1829) was a Founding Father who served as the first chief justice of the U.S. Supreme Court.  He also held other top government posts.  He was a native of New York and drafted that state’s first constitution in 1777.  The following year, he was chosen president of the Continental Congress. He then became U.S. minister to Spain.  He also helped broker the 1783 Treaty of Paris which ended the Revolutionary War. President Washington appointed Jay the Supreme Court’s first chief justice in 1789.  With the 1794 Jay Treaty he was able to avert war with Great Britain.  He also served as governor of New York for six years and then retired from public office.

A Committee of Detail met during the July 4 recess and produced a rough draft of the Constitution. 

On July 25, 1787, about five weeks after Hamilton’s June 18 speech, John Jay wrote a letter to then-General Washington, who was acting as president of the Constitutional Convention, stating:  "Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen" (“born” underlined in the original).
http://rs6.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr00379%29%29 .  John Jay reminded George Washington of the importance of remanding back to the original concerns of the people and offered his presentation, to which George Washington offered, verbatim, to the convention.  Alexander Heard and Michael Nelson, Presidential Selection 123 (Duke University Press 1987) via Google Books.

Jay demanded that there be a "strong check" on foreign influence infiltrating the national government in general and the Office of Commander in Chief of the Military specifically.  A natural born subject, whether under English common law or naturalization Acts of Parliament, both of which permitted dual and conflicting allegiance at birth, did not provide that strong check on foreign influence for which Jay was looking.  

On July 26, 1787, the Constitutional Convention instructed the Committee of Detail to come up with qualifications for the offices of members of Congress and the President.  2 Farrand, at 116-17, 121-25.  The Committee produced a report on August 6, but it only contained qualifications for Representatives and Senators, and the President was elected by the Legislature.  Id. at 177-79, 185.  The Convention took these issues up again on August 13.  Elbridge Gerry expressed his concern over foreigners allowed into the new government.[6]  Mr. Gerry made a motion which the Convention adopted on August 20 that the Committee be instructed to report back qualifications for the Office of President.  Id. at 337, 344.   On August 22, the Committee proposed that the President “shall be of the age of thirty five years, and a Citizen of the United States, and shall have been an Inhabitant thereof for Twenty one years.”  Id. at 366-67.  The Convention did not act upon the Committee’s report regarding eligibility for the Office of President.  On August 31, the Convention agreed to refer all open matters that had yet to be agreed upon to a Committee of Eleven, which had one member from each of the represented states.    


The Committee of Eleven presented a draft of the Constitution on September 4, 1787, about six weeks after Jay’s letter and just two days after Washington wrote back to Jay.  For the first time, it was proposed in a draft of the Constitution that the President be elected by the Electoral College, and not by the legislature.  This was seen as a way to protect the Office of President from foreign influence and corruption to which the legislature was subject.  It was believed by Madison that it would be much more difficult for the Electoral College to be so corrupted.  But the Committee of Eleven went even further.  While the Committee on Detail originally proposed that the President must be merely a “Citizen of the United States,” as well as a resident for 21 years, the Committee of Eleven in a proposal that immediately followed that of the Electoral College (that of the Electoral College was number “(4)”) only grandfathered the status of a "Citizen” of the United States and required future presidents to be a "natural born citizen."  This was a stronger form of citizenship which the Committee linked only to the singular Office of President and Commander in Chief, to be satisfied by those born after the adoption of the Constitution.  There is no recorded explanation for the addition of natural born citizen.  Here is the first style of the clause as presented by the Committee of Eleven:

(5) 'Sect. 2. No person except a natural born citizen or a Citizen of the U. S. at the time of the adoption of this Constitution shall be eligible to the office of President; nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the U. S.'

Id. at 493-94, 498;  Madison's notes of the Convention http://www.nhccs.org/dfc-0904.txt .

The natural born citizen proposal passed unanimously without debate on September 7 (Id. at 536), which does not mean that the proposal was not discussed, for the convention meetings were conducted in secrecy. 

The draft of the Constitution then passed to the Committee on Style which was tasked with producing the final version of the Constitution.  The Committee of Style then gave the finishing touches to the clause and adopted it without debate.  The Convention then accepted it on September 17, 1787 and sent it to the states for ratification.  Id. at 574, 598. 

Yinger provides this summary of what transpired at the Convention: 

In one sense, the switch to the Electoral College lowered the need for explicit presidential qualifications because it minimized the line of potential foreign influence running through the Legislature. In another sense, however, this switch broke the clear connection between the citizenship requirements of legislators and the selection of the President, and therefore boosted the symbolic importance of a citizenship requirement for the President. This change in context, along with the Convention's decision to make the President the commander-in-chief of the army, gave new weight to the arguments in Jay's letter, and in particular to the suggestion in that letter that the presidency be restricted to "natural born" citizens. When Jay's letter arrived, probably sometime before August 13, the Convention was not ready to deal with it, and indeed was somewhat hostile to its ideas. But between August 31 and September 4, when the Committee of Eleven did its work, the context changed and the seed that Jay had planted bore fruit.(37)

Yinger, at 5-6. 

At the close of the Convention, Hamilton gave to Madison another document which does contain in Article IX provision for the election of a President and the “born a citizen” language for eligibility.  Ferrand wrote that Hamilton gave this “paper” to Madison at the end of the Convention and that Hamilton “would have wished to be proposed by the Convention:  He had stated the principles of it in the course of the deliberations.”  p. 619.   Farrand also wrote that Hamilton’s paper “was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.”  p. 619.  This draft of the Constitution is not to be confused with his sketch of a plan of government (the British Plan) which he read to the Convention on June 18, 1787.

Elliott’s Debates has additional information on this proposed constitution.  He explains: 

No. 5.

Copy of a Paper communicated to James Madison by Col. Hamilton, about the close of Convention in Philadelphia, 1787, which, he said, delineated the Constitution which be would have wished to be proposed by the Convention. He had stated the principles of it in the course of the deliberations.

Note.— The caption, as well as the copy of the following paper, is in the hand-writing of Mr. Madison, and the whole manuscript, and the paper on which it is written, corresponds with the debates in the Convention with which it was preserved. The document was placed in Mr. Madison’s hands for preservation by Col. Hamilton, who regarded it as a permanent evidence of his opinion on the subject. But as he did not express his intention, at the time, that the original should be kept, Mr. Madison returned it, informing him that he had retained a copy. It appears, however, from a communication of the Rev. Dr. Mason to Dr. Eustis, (see letter of Dr. Eustis to J Madison, 28th April, 1819,) that the original remained among the papers left by Col. Hamilton.

In a letter to Mr. Pickering, dated Sept. 16 1803, (see Pitkin’s History, Vol. 2, p. 259—60) Col Hamilton was under the erroneous impression that this paper limited the duration of the presidential term to three years. This instance of the fallibility of Col. Hamilton’s memory, as well as his erroneous distribution of the numbers of the “Federalists” among the different writers for that work, it has been the lot of Mr. Madison to rectify; and it became incumbent, in the present instance, from the contents of the plan having been seen by others, (previously as well its subsequently to the publication of Col. Hamilton’s letter,) that it, also, should be published.

Elliott’s Debates:  Volume 5 Appendix to the Debates of the Federal Convention, Note 5.  http://teachingamericanhistory.org/ratification/elliot/vol5/appendix/

This subsequent draft of a constitution provided that the President be then a citizen of one of the States or thereafter be “born a citizen of the United States.”  Article IX Sec. 1 in Appendix F of the Hamilton Plan of 1787 read:  “No person shall be eligible to the office of President of the United States unless he be now a citizen of one of the States, or hereafter be born a citizen of the United States.”

Hamilton gave his paper to Madison before the convention came to an end which we know occurred on September 17, 1787, the date the delegates signed the Constitution.  Hamilton served on committees that drafted convention rules and provided for writing style.  We can reasonably assume that since the document was in the hands of these two influential Founders and Framers, they would have discussed Hamilton’s presidential citizenship proposal with others making decisions at that time.  While we do not know exactly what happened during the convention regarding Hamilton’s “now a citizen of one of the States” and “hereafter be born a citizen of the United States,” we do know that they were both rejected and “natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution[]” was accepted.  We can see that the Framers did not accept merely being a citizen of a state.  They required that for those who could demonstrate that they had that status as of the time of the adoption of the Constitution, the President at a minimum had to be a citizen of the United States.  For those born after the adoption of the Constitution, their standard was more stringent than Hamilton’s born a citizen of the United States.  They required more than just being born a citizen of the United States.  Rather, they demanded that future presidents and commanders be natural born citizens of the United States.  As we can see from the Constitution at Article I, Section 8, Clause 4, Congress was given naturalization powers which included the power to make citizens of the United States from the moment of birth and after birth.  But Congress was not given any power to make actual “natural born citizens.”  Hence, a natural born citizen would have to come into being through no positive law.[7]  A natural born citizen would have to come into being through his or her birth circumstances alone.  Congress could extend the privileges, immunities, and rights of a natural born citizen to persons that it would naturalize in the future.  But Congress could not extend to those persons the privilege of being eligible to be President which the Constitution only granted to actual natural born citizens.  

Hamilton did provide his paper containing the “born a citizen of the United States” language to James Madison.  Additionally, he most likely also discussed his paper with other Convention delegates, even if he did not submit his paper to the Convention.  Ferrand stated that Hamilton “had stated the principles of it in the course of the deliberations” of the Convention.  Id. at 619.  It is hard to accept that Hamilton would have gone through all that effort to draft that proposed constitution and not share its principles with the Convention delegates prior to the end of the Convention.  Hence, enough delegates probably knew about Hamilton’s “born a citizen of the United States,” but no one made any suggestion that the Constitution read “born a citizen of the United States” rather than “natural born citizen.”

Additionally, it does appear as though the Committee of Eleven was influenced by Hamilton’s language or his ideas given that it did add a grandfather clause (Hamilton said “now a citizen of one of the States”) which, while not accepting “now” a citizen of one of the states, allowed for a citizen of the United States at the time of the adoption of the Constitution to be eligible to be President.  It also appears as though the same Committee was influenced by his “born a citizen of the United States,” although they accepted Jay’s “natural born citizen” and not just “born a citizen of the United States.”  

What is critical to understand about the Hamilton “born a citizen” language is that it shows that he did not request that the President be a “natural born citizen.”  So he knew that the definition of the clause was a child born in the country to citizen parents.  By advocating born a citizen, anyone who was made a citizen from the moment of birth by positive law such as an Act of Congress would have been eligible to be President.  This would have included children born out of the United States to U.S. citizen parents and even children born in the United States to alien parents who should by positive law be made citizens from the moment of birth.  But the Convention adopted “natural born citizen,” a word of art, and not “born a citizen,” a mere description, which means that the delegates wanted a more stringent standard than just born a citizen.  Given the meaning of the word of art natural born citizen, that standard was a child born in a country to parents who were its citizens. 

Defining a Natural Born Citizen and All Those Who Are Not

A citizen is a member of a nation originally made by associating with others to form that nation and thereafter by birth alone or by naturalization through positive law. As to those citizens made by birth alone, they are the natural born citizens, so made by their birth circumstances alone.  Given their birth circumstances, they do not need a nation to confer upon them at birth or after birth its nationality or citizenship by any means.  Those birth circumstances, as confirmed by the law of nations and American national common law, are birth in the county to parents who were its citizens at the time of the child's birth. See Emer de Vattel, The Law of Nations, Sections 212 to 217 (1758) (1797) ("The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens"); Minor, 88 U.S. at 167-68) (“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first.”  Minor held that a natural born citizen did not need the Fourteenth Amendment or any other law to be a citizen of the United States); accord Wong Kim Ark, 169 U.S.  at 665) ("The child of an alien, if born in the country, is [by virtue of the Fourteenth Amendment] as much a citizen as the natural born child of a citizen, and by operation of the same principle").  As to the other citizens, they are so made by the naturalizing force of positive laws. In the United States, these positive laws are, in addition to the Fourteenth Amendment, naturalization Acts of Congress and treaties.

Section 101(a)(23) INA (8 U.S.C. 1101(a)(23)) provides:  “(a) As used in this chapter--. . . (23) The term ‘naturalization’ means the conferring of nationality of a state upon a person after birth, by any means whatsoever."  But this is a definition of naturalization only for purposes of “this chapter,” which has specific consequences connected to whether someone obtains U.S. citizenship at birth or after birth.  It is a definition of the term that Congress is applying to “a state,” which means to any nation in the world. This is not the broad definition of the term as used in the Constitution.  Under the Constitution, any person who is not a common law natural born citizen is an “alien or foreigner” and in need of naturalization by any means whatsoever.   Minor, 88 U.S. at 167-68.  This includes persons who are born in the United States to one or two alien parents or born out of the United States and its jurisdiction, regardless of the citizenship of the parents.  As to those children born in the United States to one or two alien parents, they are made citizens of the United States at birth specifically by the Fourteenth Amendment, which incorporates the English common law jus soli rule of citizenship and its naturalizing force.  See Vattel, The Law of Nations, Section 214, called “Naturalisation,” where he stated:   “Finally, there are states, as, for instance, England, where the single circumstances of being born in the country naturalises the children of a foreigner.”  As to those children born out of the territory and jurisdiction of the United States, if born to one or two U.S. citizen parents, they are made citizens of the United States at birth by Congress through its naturalization Acts. 

Application to Ted Cruz

"Trusted" Ted Cruz, who was born in Canada in 1970, says he did not know until 2013 that he was a Canadian citizen.  The Dallas Morning News reported on August 19, 2013:  “Sen. Ted Cruz acknowledged late Monday that he probably has been a lifelong Canadian, and vowed to renounce that citizenship now that he realizes he’s had it.” “‘The Dallas Morning News says that I may technically have dual citizenship,’ he said in a statement. ‘Assuming that is true, then sure, I will renounce any Canadian citizenship. Nothing against Canada, but I’m an American by birth and as a U.S. Senator, I believe I should be only an American.’”  The newspaper further reported:  “Cruz was born in Calgary, Alberta, on Dec. 22, 1970. His mother is a lifelong U.S. citizen. His father, born in Cuba, remained a Cuban citizen until he was naturalized as an American in 2005. When Cruz was born, his parents were living in Canada, where they had opened a seismic-data business in the oil patch. Cruz lived in Canada until he was 4 years old, and spent the rest of his childhood in Texas. . . . Under Canadian law, his birth on Canadian soil made him a natural born Canadian.  Under U.S. law, his mother’s citizenship made him a U.S. citizen from birth. Both countries allow for dual citizenship.”  http://www.dallasnews.com/news/local-news/20130819-sen.-ted-cruz-to-renounce-canadian-citizenship.ece

Generally, under Canada's Citizenship Act of 1947, those born in Canada were automatically citizens at birth unless their parent was a foreign diplomat. So, Ted Cruz, the lawyer who graduated from Harvard Law School and who successfully argued cases before the U.S. Supreme Court, who got a passport in 1986 so that he could travel to Great Britain for a high school class trip, who is a U.S. Senator, who knew that one born in the United States while subject to its jurisdiction (which includes birth to alien parents) is a citizen of the United States, who knew that one who is born in the United States who leaves the U.S. even for one minute after his birth is still a U.S. citizen, who knew that in the United States one can get a U.S. passport by presenting a U.S. birth certificate showing that one was born in the United States, who knew that his father was born in Cuba and that his place of birth made him a Cuban citizen, who knew that his mother was born in the United States and that her place of birth made her a U.S. citizen, and who knew that he himself was born in Canada (the place of his birth) to parents neither of whom were foreign diplomats, did not know that his being born in Canada made him a Canadian citizen? Now really? 

Furthermore, maybe Senator Cruz, Chairman of the Senate Commerce Subcommittee on Space, Science and Competitiveness, can tell us what he knows about persons born in foreign countries getting a security clearance from the U.S. Government. Cruz said that “as a U.S. Senator, I believe I should be only an American,” but he did not disclose to the people of Texas that he was a citizen of Canada at birth when he ran for that office.  This is even with U.S. Senators, among the various responsibilities they have relative to U.S. relations with foreign nations, being called upon to vote on treaties with foreign nations.  In 2014, after being confronted by the public media about his Canadian birthright citizenship, Cruz did renounce that Canadian citizenship with which he was born.  That was 18 months after he took the oath of office as a U.S. Senator.  But Cruz, born to a Cuban citizen father, was also born potentially a Cuban citizen at birth.  To date, he has not mentioned his potential Cuban citizenship at birth, even though he could have qualified through his Cuban father for that citizenship under the Cuban Constitution.[8] What have Cruz’s activities been in the U.S. Senate relative to the United States normalizing relations with Cuba?  I am not faulting and never would fault Cruz for his birth circumstances.  But a U.S. Senator and President, acting in a public capacity, has to disclose to the public what his or her private interest via-a-vis a foreign nation may be. 

Regardless of what Cruz knew or did not know about his Canadian citizenship, Cruz was born in Canada presumably to a U.S. citizen mother, but to a non-U.S. citizen father.  Hence, he was not born in the country to parents who were its citizens, which means that he is not nor can he be a citizen through his birth circumstances alone. Rather, he is what Minor called an “alien or foreigner” in need of naturalization.[9] Therefore, he is not nor can he be a natural born citizen. Not being a natural born citizen, for him to be a citizen he needed the aid of a positive law, which in his case is a naturalization Act of Congress.  He was not born in the United States and so he could not rely upon the Fourteenth Amendment, which provides the floor standard of citizenship for those born in the United States, requiring that they be at least born subject to its jurisdiction.  Being born in a foreign country, he had to rely upon a naturalization Act of Congress, without which Cruz would have been born an alien.  This means that Cruz is at best a naturalized "citizen" of the United States "at birth," so made only by a naturalization Act of Congress (in his case it is the Immigration and Nationality Act of 1952[10]). Congress through a naturalization Act made Cruz a citizen of the United States “at birth,” meaning that he did not have to go through any naturalization process after birth.[11]  But still, it is only because of this naturalization Act that his birth circumstances allowed him to be a citizen of the United States at birth. In other words, Cruz's birth circumstances alone would have made him an alien and not a citizen. It is only by virtue of that naturalization Act which took up his birth circumstances and allowed him to become a citizen at birth.  He therefore is not and cannot be a “natural” born citizen.

Cruz and his supporters proclaim that the Framers would have accepted Cruz as a true natural born citizen because of how the First Congress treated persons such as him in the Naturalization Act of 1790.[12] First, Congress does not have the constitutional power to make anyone a natural born citizen.  In matters of citizenship, the Constitution at Article I, Section 8, Clause 4 gives to Congress only the power [t]o establish an uniform Rule of Naturalization . . . throughout the United States.”  This naturalization power does not include the power to make anyone a natural born citizen, who does not need any naturalization Act of Congress or any other law to be a citizen.   Congress was not given any powers to bestow citizenship upon anyone through any process other than naturalization.  Hence, if Congress made those foreign-born children citizens of the United States, it did so only through its naturalization powers. 

Second, that Act is a naturalization Act of Congress and surely a natural born citizen does not need a naturalization Act of Congress to be a "natural" born citizen.

Third, the Act provided:  “And the children of such person 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.”  Congress treated children born in the United States to alien parents as aliens who could naturalize as citizens of the United States upon their parents naturalization if done during their children’s minority and when they shall be dwelling in the United States.  This was consistent with the definition of a natural born citizen which provided that only children born in the country to parents who were citizens were natural born citizens and therefore also ipso facto citizens of the United States.  As to children born out of the United States, the Act said that children born out of the United States to U.S. citizen parents (both father and mother had to be U.S. citizens) "shall be considered as natural born citizens of the United States." Hence, it only treated children born out of the United States to U.S. citizen parents for all intents and purposes as natural born citizens, meaning that it gave by statute to those children the same privileges, immunities, and rights enjoyed by true natural born citizens which under the Constitution could not include the privilege of being President.

Fourth, Congress, under the leadership of James Madison and with the approval of President Washington, repealed that Act in 1795, when it passed the Naturalization Act of 1795,[13] which provided in Section 3:  “And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization, and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.”  As we can see, Congress, again consistent with the definition of a natural born citizen, treated children born in the United States to alien parents as aliens, allowing them to become citizens of the United States upon their parents naturalizing if done during their children’s minority and if those children shall be dwelling in the United States.  It also surgically removed the "shall be considered as natural born citizens” language of the 1790 Act and replaced it with "shall be considered as citizens of the United States." What is critical to understand is that Congress treated children who naturalized after birth and those who became citizens at birth by birth out of the United States to U.S. citizen parents the same, i.e., as “citizens of the United States.”  Congress clearly informed that those children born out of the United States to U.S. citizen parents were not to be accepted as natural born citizens, but rather as citizens of the United States, like children who become citizens through naturalization after birth.  Congress has never again used the natural born citizen language in any of its naturalization Acts. Rather, it has since 1795 told us that any person becoming a citizen under one of its naturalization Acts is a citizen of the United States. It is amazing that those who rely upon the 1790 Act to demonstrate that Cruz is a natural born citizen omit from their story that Congress repealed that Act in 1795 and in the 1795 Act said that those children shall be considered as citizens of the United States and not as natural born citizens. 
  
Fifth, Cruz was born to an alien father which means that he could not benefit from the 1790 Act which required a child born out of the territory and jurisdiction of the United States be born, not only to a U.S. citizen mother but also to a U.S. citizen father to be bestowed U.S. citizenship at birth.  The 1790 Act, along with that of 1795 and 1802, also required that the citizen father be a resident of the United States prior to his child’s birth.  Not until 1934 could someone like Cruz, born in a foreign country to a U.S. citizen mother and alien father, become a citizen of the United States.[14]  Somebody born under the birth circumstances of a Ted Cruz, born in a foreign country presumably to a U.S. citizen mother and to an alien father, was not even a citizen of the United States let alone a natural born citizen of the United States until 1934, when Congress passed a naturalization Act for the first time allowing children born out of the United States to a U.S. citizen mother and to an alien father to qualify as a citizen of the United States.   Cruz and his supporters also hide this little inconvenient truth from the public. Surely, we are not to reasonably believe that someone born under the same birth circumstances as Cruz, who was under the Constitution and under the naturalization Acts of Congress an alien from 1776 until 1934 and only become a citizen in 1934, could be a natural born citizen. 

Cruz is correct that if he wants to be President and Commander in Chief, he has to be “only an American.”  But for a natural born citizen, that status starts at birth, not at age 43, which is when Cruz renounced the foreign citizenship with which he was born.  

The Founders and Framers wrote the Constitution in a way that best provided for the protection of our unalienable rights to life, liberty, property, and the pursuit of happiness. They sought to do that by giving us a constitutional republic and providing for the survival and preservation of that republic. In the governmental scheme that they gave us, they provided for the Office of President and Commander in Chief, a singular and all-powerful office involving the concentration of both civilian and military power into one person. Because of such concentration of power in one individual, the Framers recognized that such offices also presented great risk to the republic and its people. They therefore gave us the “natural born Citizen” clause as one basis for eligibility to such offices. Through the natural born citizen clause, they instructed us that such power must fall into the hands of a person who can be trusted with it to the greatest degree possible and that such guarantee is of much greater importance to the survival and preservation of the constitutional republic than the fleeting politics and personal favor of having one person necessarily occupy that office. What is profound is that the Founders and Framers put their trust in “Nature and Nature’s God”[15] and not in political and legal institutions to accomplish that end. 

This historical and legal evidence, not meant to be exhaustive, provides a clear picture that Ted Cruz is not a natural born citizen and therefore not eligible to be President.[16]  So, is Ted Cruz a natural born citizen and to be “TrusTed?”  I think not. 

Mario Apuzzo, Esq.
March 7, 2016
http://puzo1.blogspot.com
####

Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved 
 



ENDNOTES:

[1] John Brooke, King George III 612 (1972). 

[2] Brooke, at 156; Simms, Brendan, Riotte, Torsten, The Hanoverian Dimension in British History, 1774-1837, p. 58 (2007). 

[3] 12 and 13 Will. III, c. 2. 

[4] Following the Perth Agreement in 2011, on March 26, 2015, legislation amending the act came into effect across the Commonwealth realms. Today people who marry Catholics are eligible to the British throne.

[5]  For an excellent discussion of the Constitutional Convention and the natural born citizen clause, see John Yinger, The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution:  Why Did the Founding Fathers Want the President to be a “Natural Born Citizen” and What Does this Clause Mean for Foreign-Born Adoptees,? available at http://faculty.maxwell.syr.edu/jyinger/citizenship/history.htm

[6] Historian Richard B. Morris writes:  “Jay’s ‘anti-foreigners’ proposal appears to have been reflected in the motion that Elbridge Gerry made on the floor of the Convention in August.”  Richard B. Morris, Witnesses at the Creation:  Hamilton, Madison, Jay and the Constitution 189-90 (1985). 

[7] The concept of "positive law" has existed since the beginning of ordered legal systems. Positive law includes constitutions, statutes, case law, and any other law adopted by whatever sovereign has power to make law at any given moment in time.  It has been said by many political and legal philosophers throughout the ages that positive law has its origin in what man perceives to be natural law and God's law, or what Thomas Jefferson in The Declaration of Independence called “the Laws of Nature and of Nature’s God,” meaning the laws of nature and the laws of nature's God. 

[8]   The Cuban Constitution provides in pertinent part: 

CHAPTER II. CITIZENSHIP

Article 28: Cuban citizenship is acquired by birth or through naturalization. Article 29: Cuban citizens by birth are:
a) those born in national territory, with the exception of the children of foreign persons at the service of their government or international organizations. In the case of the children of temporary foreign residents in the country, the law stipulates the requisites and formalities;
b) those born abroad, one of whose parents at least is Cuban and on an official mission;
c) those born abroad, one of whose parents at least is Cuban, who have complied with the formalities stipulated by law;
d) those born outside national territory, one of whose parents at least is Cuban and who lost their Cuban citizenship provide they apply for said citizenship according to the procedures stated by law;
e) foreigners who, by virtue of their exceptional merits won in the struggles for Cuba’s liberation, were considered Cuban citizens by birth.


[9]  With respect to children born out of the United States, Wong Kim Ark explained that such children can be citizens of the United States only if Congress makes them so through a naturalization Act and if it does not, those children are aliens.  United States v. Perkins, 17 Fed. Supp. 177 (D.D.C. 1936); Schaufus v. Attorney General, 45 Fed. Supp. 61 (1942); Zimmer v. Acheson, 191 Fed.2d 209 (10th Cir. 1951); Montana v. Kennedy, 366 U.S. 308 (1961); Rogers v. Bellei, 401 U.S. 815 (1971); and Miller v. Albright, 523 U.S. 420 (1998), later all observed the same.  They all said that such children could be citizens of the United States only through a naturalization Act of Congress, and that without such Act, such children would be aliens.  

[10] The naturalization statute that made Cruz a citizen of the United States at birth, section 301(a)(7) of the Immigration and Nationality Act of 1952.  Section 301, effective on December 24, 1952, provided:  

SEC. 301. (a) The following shall be nationals and citizens of the United States at birth: ….
(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.

Sec. 301(a)(7) required a U.S. citizen mother when the father is an alien to have been physically present in the United States for ten years, including five after reaching the age of fourteen, to transmit citizenship to foreign-born children. The ten-year requirement remained in effect from 12:01 a.m. EDT December 24, 1952, through midnight November 13, 1986, and still applies to persons born during that period. Section 301(a)(7) was amended by Public Law 103-416 on October 25, 1994, creating section INA 301(g), which uses this language with respect to the amount of time that a person’s U.S. citizen mother has to be physically present in the United States prior to giving birth to her child out of the United States:  “not less than five years, at least two of which were after attaining the age of fourteen years.”  See 8 U.S.C. Section 1401(g). It is settled law that the naturalization statute of Congress that was in effect at the time of one's birth is the statute that controls whether one is a U.S. citizen or not.  Please note that given that Barack Obama was born on August 4, 1961 to a U.S. citizen mother and a non-U.S. citizen father, if he was not born in the United States he would be an alien, for his mother was only 18 years old at the time of his birth. 

[11] Under the Child Citizenship Act of 2000 (Public Law No: 106-395) foreign-born adoptees become citizens of the United States as soon as their adoptions are finalized, with no need for them to go through any separate naturalization process after their birth.  Under the logic of the thesis that any person who becomes a citizen of the United States without having to go through any naturalization process after birth is a natural born citizen, these adoptees would not be “naturalized” citizens and therefore natural born citizens.  But still, S. 2128 was proposed to confirm that they were to be treated as natural-born citizens.  S. 2128 provided a definition of a natural born citizen that included foreign-born adoptees.  Congress never passed this bill.  This example further shows that we do not arrive at who is and who is not a natural born citizen by manipulating the definition of “naturalization.”  Rather, we arrive at it by showing that one does or does not satisfy the sufficient and necessary conditions of being a natural born citizen which are born or reputed born in the country to parents who were its citizens.   

[12] United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court  that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States.  And the children of such person 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 in the United States:  Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

Sess. II, Chap. 3; 1 stat 103, 1st Congress; March 26, 1790.

[13] United States Congress, “An act to establish an uniform rule of Naturalization; and to repeal the act heretofore passed on that subject” (January 29, 1795).

For carrying into complete effect the power given by the constitution, to establish an uniform rule of naturalization throughout the United States:

SEC.1.  Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise: --

First.  He shall have declared, on oath or affirmation, before the supreme, superior, district, or circuit court of some one of the states, or of the territories northwest or south of the river Ohio, or a circuit or district court of the United States, three years, at least, before his admission, that it was bona fide, his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and particularly, by name, the prince, potentate, state or sovereignty whereof such alien may, at that time, be a citizen or subject.

Secondly.  He shall, at the time of his application to be admitted, declare on oath or affirmation before some one of the courts aforesaid, that he has resided within the United States, five years at least, and within the state or territory, where such court is at the time held, one year at least; that he will support the constitution of the United States; and that he does absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and particularly by name, the prince, potentate, state, or sovereignty, whereof he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court.

Thirdly.  The court admitting such alien shall be satisfied that he has resided within the limits and under the jurisdiction of the United States five years; and it shall further appear to their satisfaction, that during that time, he has behaved as a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same.

Fourthly.  In case the alien applying to be admitted to citizenship shall have borne any hereditary title, or been of any of the orders of nobility, in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility, in the court to which his application shall be made; which renunciation shall be recorded in the said court.

SEC. 2.  Provided always, and be it further enacted, That any alien now residing within the limits and under the jurisdiction of the United States may be admitted to become a citizen on his declaring, on oath or affirmation, in some one of the courts aforesaid, that he has resided two years, at least, within and under the jurisdiction of the same, and one year, at least, within the state or territory where such court is at the time held; that he will support the constitution of the United States; and that he does absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and particularly by name the prince, potentate, state, or sovereignty, whereof he was before a citizen or subject; and moreover, on its appearing to the satisfaction of the court, that during the said term of two years, he has behaved as a man of good moral character, attached to the constitution of the United States, and well disposed to the good order and happiness of the same; and when the alien applying for admission to citizenship, shall have borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, on his moreover making in the court an express renunciation of his title or order of nobility, before he shall be entitled to such admission; all of which proceedings, required in this proviso to be performed in the court, shall be recorded by the clerk thereof.

SEC. 3.  And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization, and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States:   Provided, That the right of citizenship shall not descend to persons, whose fathers have never been resident of the United States:  Provided also, That no person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted a citizen as foresaid, without the consent of the legislature of the state, in which such person was proscribed.

SEC. 4.  And be it further enacted, That the Act intituled, “An act to establish an uniform rule of naturalization,” passed the twenty-sixth day of March, one thousand seven hundred and ninety, be, and the same is hereby repealed.

Sess. II, Chap. 19, 20; 1 stat 414, 3rd Congress; January 29, 1795.

[14]   The Naturalization Act of 1790 required that the foreign-born child be born to “citizens” and that the father be a resident of the United States prior to the child’s birth, meaning that the child had to be born to a father and mother who were U.S. citizens in order for that child to be considered as a natural born citizen.  Cruz was born only to a U.S. citizen mother.  Not being born also to a U.S. citizen father, Cruz would not have been a citizen of the United States under the early naturalization Acts of Congress (1790, 1795, 1805, and 1855) and was made a citizen only because Congress eventually did away with the common law doctrine of coverture (allowing husbands and wives to have their own citizenship rather than wives acquiring that of their husbands) in 1922 with the Cable Act of 1922 (ch. 411, 42 Stat. 1021, "Married Women's Independent Nationality Act").  If born between 1802 and 1855 to U.S. citizen parents who acquired that status after 1802, Cruz, born out of the territory and jurisdiction of the United States, would under the Naturalization Act of 1802 not even be a citizen of the United States, let alone a natural born citizen of the United States.  Cruz got lucky because Congress in 1934 passed a naturalization Act (Act of May 24, 1934, § 1, 48 Stat. 797) which for the first time allowed a person born in a foreign country to a U.S. citizen mother and a non-U.S. citizen father to be a citizen of the United States.  That naturalization rule was carried forward in the Nationality Act of 1940 (H.R. 9980; Pub.L. 76-853; 54 Stat. 1137, enacted October 14, 1940) and the Immigration and Nationality Act of 1952 (Pub.L. 82–414, 66 Stat. 163, enacted June 27, 1952), the latter being the statute in effect when Cruz was born and without which or without those of 1934 and 1940, Cruz would have been born an alien. 

[15] “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”  Declaration of Independence, Preamble. 

[16] Marco Rubio is also not a natural born citizen.  Somebody born under the birth circumstances of a Marco Rubio, born in the United States to alien parents, was not even a citizen of the United States, let alone a natural born citizen of the United States, until the 1898 U.S. Supreme Court decision of Wong Kim Ark, which made such persons citizens of the United States from the moment of birth. The U.S. Supreme Court in The Slaughterhouse Cases, 83 U.S. 36, 72-73 (1873) had said they were not even citizens under the Fourteenth Amendment. (“The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”)  Minor, which defined a natural born citizen as a child born in a country to parents who were its citizens at the time of the child’s birth, had explained that "there have been doubts" whether such children were even just citizens of the United States under the Fourteenth Amendment.  The purpose of this article has been to further focus on Ted Cruz’s ineligibility to be President rather than on Marco Rubio’s.  For full details on how Rubio is not a natural born citizen, see my many articles and comments at my blog, http://puzo1.blogspot.com