The
Illinois Board of Elections Got It Wrong:
Ted Cruz Is Not a Natural Born Citizen
By
Mario Apuzzo, Esq.
February
5, 2016
The Illinois Board of Elections recently found that
Presidential contender, Senator Ted Cruz, is an Article II “natural born
citizen.” http://www.huffingtonpost.com/entry/ted-cruz-natural-born-illinois_us_56b10542e4b0a1b96203f393
. Lawrence Joyce and William Graham
objected to Cruz being placed on the presidential primary ballot in Illinois,
contending that he is not an Article II natural born citizen. The Board rejected the challenge and found
that Cruz “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 so
found because it said he "did not have to take any steps or go through a
naturalization process at some point after birth." The Board also had the audacity to cavalierly
state: “Further discussion on this issue
is unnecessary." The Board erred. The
Board’s ruling is an expression of Congressional Research Service attorney Jack
Maskell’s baseless thesis of his definition of a natural born citizen. Not only is Maskell’s definition a fabricated
and revisionist definition of a natural born citizen, it also is
nonsensical. See Mario Apuzzo, The Fallacies of Congressional Legislative
Attorney Jack Maskell’s Definition of a “Natural Born Citizen,” http://puzo1.blogspot.com/2013/06/the-fallacies-of-congressional.html
(June 2, 2013) (demonstrates how Maskell’s thesis is erroneous); Mario Apuzzo, The Constitution, the Rule of Law, and the
“Natural Born Citizen” Clause: A Response to Artsy Fartsy Squeeky Fromm
Girl Reporter, http://puzo1.blogspot.com/2013/07/the-constitution-rule-of-law-and.html (July 19, 2013) (same).
I. CONSTITUTIONAL CONSTRUCTION
Let us begin with a brief textual and structural
analysis of Article I and II. Article I,
Section 2 (applicable to Representatives) and Section 3 (applicable to
Senators) allows Representatives and Senators to be just “citizen” of the
United States for a minimum of seven and nine years, respectively, to be
eligible for those offices. It does not
require that they be “natural born citizens” of the United States. In contrast, Article II, Section 1, Clause 5
of the Constitution says: "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." We have to consider that
the House and Senate are collegial bodies which act as bodies of many individuals
and not by the decision of just one individual.
In contrast, the Office of President and Commander is singular. The Framers required future Presidents and
Commanders to be natural born citizens so as to provide a “strong check”[1] against
foreign and monarchical influence infecting the Office of President and
Commander in Chief. We can only conclude
from Article I and II that the Framers did not believe that being a citizen
provided a strong enough check against that pernicious monarchical and foreign influence
affecting the one person upon whom the great and singular civil and military
powers of the President and Commander devolve.
Rather, being a natural born citizen did. So, being a citizen of the United States
today is not sufficient to be eligible to be President. For those born after the adoption of the
Constitution, if one is a “citizen” of the United States but not also a “natural
born citizen” of the United States, then one is prohibited from being
President. The Twelfth Amendment requires that also the Vice-President be
a natural born citizen.
As we can plainly see from the text of Article II,
today, if one wants to be President, one must demonstrate that one is a
“natural born citizen” of the United States, not just a “citizen” of the United
States. The text also does not say
“citizen” of the United States at birth.
As I will demonstrate, there is a critical constitutional difference
between these two types of U.S. citizenships and that only a natural born
citizen of the United States is eligible to be President. I will show that Ted Cruz might be a citizen
of the United States at birth. But
having acquired that at birth status by naturalization and not by birth alone,
he is not nor can he be a natural born citizen.
That Cruz did not have to go through any naturalization process after
his birth, assuming that to be true, does not nor can it erase the fact that he
was by law naturalized at birth by Congress through its naturalization Act
applicable to Cruz when he was born in 1970.
Needing Congress to naturalize him at birth, Cruz is not nor can he be
an Article II natural born citizen.
We have seen that the text and structure of Article
II, Section 1, Clause 5 reveals that the Framers made a critical constitutional
distinction between a “citizen” and “natural born citizen.” The only possible explanation for the
Framers using these two clauses as they did is that a citizen of the United
States who was born after the adoption of the Constitution and who was not
eligible to be President was a citizen of the United States, but not a natural
born citizen. Not being a natural born
citizen, that citizen could only be a naturalized citizen. So, what made that person a naturalized
citizen was the simple fact that he or she was not a natural born citizen. And what made that person not a natural born
citizen was the fact that he or she did not satisfy the definition of a natural
born citizen. So what is a natural born
citizen as opposed to just a citizen?
The Constitution does not define a natural born
citizen. Hence, it is not the
Constitution that created the meaning of a natural born citizen. The definition of a natural born citizen
already existed when the Framers drafted and adopted the Constitution and when
it was ratified. It also existed before
Congress passed its first naturalization Act in 1790. Since the meaning of the clause already
existed prior to the drafting and ratification of the Constitution and prior to
any naturalization Act, that definition did not nor could it draw its source
from the Constitution or any Act of Congress.
That definition could only come from some source other than the
Constitution or an Act of Congress. The
historical and legal record demonstrates that that source was the law of
nations, whose citizenship principles were incorporated into American national
common law and the naturalization Acts of Congress, and not the English common
law.
II. THE ORIGINAL CITIZENS
Before we consider the meaning of a natural born
citizen, let first examine who the original citizens of the United States
were. Simply, the original citizens were
those people who associated together and adhered to the American
Revolution. They were made a citizen of
the free and independent state which they inhabited by the force of the
Declaration of Independence and the Revolution.
Upon ratification of the Constitution, they became the first citizens of
the United States. These original
citizens included the Founder and Framers and also most of the early
Presidents. Article II grandfathered the
original citizens of the United States to be eligible to be President.
III. THE NATURAL BORN CITIZENS
Having examined who the original citizens were, now
let us examine who the natural born citizens were. Our U.S. Supreme Court has long confirmed
that the birth circumstances that make one a natural born citizen are birth in
the United States to U.S. citizen parents (meaning U.S. citizen father and
mother). Under the common law the
nomenclature with which the Framers were familiar when they drafted and adopted
the Constitution, all children born in a country to parents who were its
citizens were “natives, or natural-born citizens,” and all the rest of the
people were “aliens or foreigners,” who could be naturalized by some
law. See Emer de Vattel, The Law of Nations, or Principles
of the Laws of Nature, Applied to the Conduct and Affairs of Nations and
Sovereigns, bk. 1, c. 19, sec. 212 Citizens and natives (London 1797) (1st
ed. Neuchatel 1758) ("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
v. Happersett, 88 U.S. 162, 167 (1875) (“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,” which is a paraphrase of Vattel’s law
of nation’s definition of “natives, or natural-born citizens”); as to a natural
born citizen, accord U.S. v. Wong Kim Ark, 169 U.S. 649, 665
(1898), citing Minor and quoting without criticism its common law definition of
a natural born citizen and citing an quoting Horace Binney, Alienigenae
of the United States, p. 22, note (2nd ed., Philadelphia,
Dec. 1, 1853) ("The child of an alien, if born in the country, is as much
a citizen as the natural born child of a citizen, and by operation of the same
principle," meaning birth in the country, and thereby distinguishing a
Fourteenth Amendment “citizen” of the United States “at birth” from an Article
II “natural born citizen” of the United States).
So, a natural born citizen was defined under the
common law, which was American common law and not English common law, and not
by any naturalization Act of Parliament or Congress. While an Act of Congress did not created the
definition of a natural born citizen, examining what our early Congress did in
the area of naturalization provides valuable insight into the definition of a
natural born citizen and confirms that the Framers got their definition of a
natural born citizen from the law of nations and not the English common or
statutory law. As we have seen, a
natural born citizen is not a naturalized citizen. It would be absurd to contend that a
“naturalized” citizen is a “natural born” citizen, as absurd as saying that
one’s adopted child (so created by positive law) is one’s natural child (so
recognized only by his or her birth circumstances). So anything that could be said about a
naturalized citizen does not nor could it change the meaning of a natural born
citizen. If anything, knowing what a
naturalized citizen is confirms what a natural born citizen is and what it is
not. Who the Framers viewed to need
naturalization confirms who they held to be the natural born citizens. As we shall see, the only person who the
Framers viewed as not needing any form of naturalization was a child born in
the United States to parents who were U.S. citizens at the time of the child’s
birth. These children were the “natives,
or natural-born citizens.” Minor v. Happersett (1875). Since under the common law doctrine of
coverture both parents were either citizens or aliens, “parents” could only
mean a father and mother who were both U.S. citizens. Also, at common law “children” meant
legitimate children. So the Framers in
the end required that both the married father and mother be U.S. citizens at
the time of their child’s birth in the United States in order for their child
to be a natural born citizen. If a child
was born to an alien father, that meant that he or she was born to a father and
mother who were both aliens which in such case the minor child, under the
naturalization Acts of Congress then to be in effect, would have needed to
naturalize after birth either derivatively once the parents naturalized or on
his or her own upon reaching the age of majority.
IV. THE NATURALIZATION ACTS OF CONGRESS
Let us now examine the early naturalization Acts of
Congress. Under the common law that had
prevailed in the colonies and which continued to prevail in the new states,
aliens could not inherit property. Additionally,
a number of children of U.S. citizens were born out of the United States during
the American Revolution. Hence, the
Americans followed the English model and passed the Naturalization Act of 1790
(1 Stat. 103), which is our nation's first naturalization Act. These naturalization Acts did not change the
common law. Rather, they abrogated it to
the extent that they could constitutionally.
In Great Britain, Parliament had no constitutional constraints as it was
and continues to be supreme. But in the
United States, Congress could only exercise those limited powers given to it by
the Constitution.[2] As its title and stated purpose, “An Act to
establish an uniform Rule of Naturalization,” clearly and plainly proclaimed,
this Act was no more than a naturalization Act passed by the First Congress
under its Article I, Section 8, Clause 4 naturalization powers "[t]o
establish an uniform Rule of Naturalization . . . throughout the United
States." The First Congress, which contained many Founders and Framers,
including then-Representative James Madison, saw the need to naturalize
children born out of the United States to U.S. citizen parents. If it did not see that need, there is no
reason why it would have passed any naturalization statute which reached those
children. This would be consistent with
Congress not passing any naturalization statute reaching children born in the
United States to U.S. citizen parents who we shall see were the natural born
citizens and not in need of any naturalization.
To naturalize children born out of the United States to U.S. citizen
parents, children who were aliens under the common law, the First Congress,
with the approval of President George Washington, passed the Naturalization Act
of 1790. There it said that those
children "shall be considered as natural born citizens." While these children were born to a father
and mother who were U.S. citizens, they were not born in the United
States. They therefore could not be
natural born citizens. But Congress
sought to make them citizens of the United States and said that they shall
enjoy the same privileges, immunities, and rights as the natural born citizens,
provided that their U.S. citizen fathers had been residents in the United
States prior to the child’s birth. With
these children not being natural born citizens, the privileges, immunities, and
rights that Congress gave to them did not nor could it include the privilege of
being elected President.
But the Constitution gives to Congress in matters of
citizenship only the power to make uniform the rules of naturalization. Since in such matters, the Constitution gives
Congress only power over naturalization and naturalization does not reach nor
can it reach the meaning of a natural born citizen, Congress has no power to
change the meaning of a natural born citizen.
If Congress wants to change that definition, it must do so through a
duly ratified constitutional amendment. This
means that Congress cannot through any of its naturalization Acts add or
subtract to the class of natural born citizens by either expanding or limiting
the definition of the clause by including less or more birth
circumstances.
By attempting in its 1790 Act to declare persons
born out of the United States to “be considered as natural born citizens,”
Congress exceeded those powers and passed what could be ruled to be an
unconstitutional Act. Consider that in Marbury v. Madison, 5 U.S. 137 (1803), the U.S. Supreme Court ruled that
Congress’s Judiciary Act of 1789 was unconstitutional in how it gave to the
Supreme Court original jurisdiction over a mandamus action. Hence, Congress could also have acted
illegally in giving to itself powers to define a natural born citizen which it
did not have under the Constitution.
Another problem with the Naturalization Act of 1790 was that, if
Congress did not intend to expand who could be a natural born citizen, it nevertheless
created confusion as to whether children born out of the United States to U.S.
citizen parents were under the Constitution eligible to be President since the
statute did say that children born out of the United States to U.S. citizens
“shall be considered as natural born citizens.” Probably to avoid any
constitutional problem and to make matters clear, the Third Congress in 1795,
with the leadership of then-Representative James Madison and with the approval
of President George Washington, through the Naturalization Act of 1795,
repealed the Act of 1790, and changed "shall be considered as natural born
citizens" to "shall be considered as citizens of the United
States." Clearly, President Washington and early Congress, which included
Madison and other Founders and Framers, informed that there was to be no
confusion or doubt that those children were not natural born citizens. In fact, through the surgical language
change, they told us that they were citizens of the United States, but not
natural born citizens.
So after repealing that Act and replacing it with
the Naturalization Act of 1795, in the latter Act, rather than using the same
words “shall be considered as natural born citizens,” Congress replaced them
with “shall be considered as citizens of the United States.” Defining the citizens of the United States
through its naturalization powers was perfectly acceptable under the
Constitution and except when it referred to who shall be considered as natural
born citizens, that is what the 1790 Act had done. Clearly such exercise of power fell under
Congress’s power to establish a uniform the rule of naturalization throughout
the United States and the exercise of that power did not fall upon the natural
born citizens, but rather upon persons who were otherwise aliens and who the
nation through Congress adopted as citizens of the United States. In fact, the 1790 Act was the first and last
time that Congress ever in any naturalization Act mentioned the natural born
citizens. Starting with the 1795 Act and
continuing to the present naturalization Acts, Congress never again referred to
the natural born citizens.
Congress, to the present day, has never again in any
of its naturalization Acts referred to children born out of the United States
to one of two U.S. citizen parents in any way as natural born citizens. Congress has therefore, if not already in
1790 then since 1795, made it abundantly clear that such children are citizens
of the United States at birth, but not natural born citizens. This demonstrates that reliance upon the
Naturalization Act of 1790 to make someone a natural born citizen is
misplaced.
The law that applies in determining whether someone
born outside of the U.S. is a citizen of the U.S. is very complex. It has continuously changed since the First
Congress passed our nation's first naturalization Act, that of 1790. The law
that was in effect when the child was born is the law that controls. Generally,
the changes have focused on whether the child was born to one or two U.S.
citizen parents, whether the citizen parent was the father or mother (the 1790,
1795, 1802, 1804 Acts required U.S. citizen parents and the 1855 Act referred
to U.S. citizen fathers only), whether the citizen father resided in the United
States (started as early as 1790), whether the child was born in wedlock or out
of it (started in 1940), and whether the child came back to the U.S. and
started to reside (started May 24, 1934) or later at least be physically
present (started in 1952). Congress’s
conditions for being accepted as a citizen of the U.S. at birth are called
condition precedent or condition subsequent.
As stated, Congress's naturalization Acts did not
permit a child born out of the U.S. prior to May 24, 1934 to a U.S. citizen
mother and an alien father to acquire U.S. citizenship at birth. Starting on that date, children born out of
the U.S. to U.S. citizen mothers and alien fathers, satisfying all conditions
precedent and subsequent, were adopted under the naturalization Acts of
Congress as citizens of the U.S. at birth and remained so. Hence, if Cruz was
born on May 24, 1934 to a U.S. citizen mother and an alien father, satisfying
all conditions precedent and subsequent, he would have been under an Act of
Congress a citizen of the U.S. at birth and remained one. This is not to say that he was a natural born
citizen under the Constitution, who needs no such naturalization Act of
Congress to be recognized as a citizen of the U.S. at birth.
It is telling to consider in this connection that the
1934 Act imposed for the first time retention requirements (condition
subsequent) if the parents were not both U.S. citizens. In such case, the child had to continuously
reside in the U.S. for at least five years immediately before turning 18 years
of age and take the oath of allegiance within six months after turning 21. The 1952 Act continued this retention
requirement, although it changed it from residency to continuous physical
presence. That Act required the child to
be continuously physically present in the U.S. for at least five years between
the ages of 14 and 28. Later statutes liberalized the retention requirement
until it was totally removed by the more modern naturalization statutes. This meant that a child could be born a
citizen of the U.S. but then lose that citizenship if he or she did not satisfy
that subsequent residency or physical presence requirement.
Cruz says that he is a natural born citizen because
he was born a citizen under the 1952 Act.
Imagine if he did not move to the U.S. at age 4 as he did, thereby
satisfying the retention residency requirement.
In default thereof, he would have lost U.S. citizenship with which he
was born in 1970. See Bellei v. Rogers,
401 U.S. 815 (1971) (§ 301(b) of the Immigration and Nationality Act of 1952,
which provides that one who acquires United States citizenship by virtue of
having been born abroad to parents, one of whom is an American citizen, who has
met certain residence requirements, shall lose his citizenship unless he
resides in this country continuously for five years between the ages of 14 and
28 is constitutional). Now ask yourself
how could a natural born citizen lose his or her citizenship by not residing in
the U.S. for a certain period of his or her life? The question is pregnant with the
answer. Congress simply does not have
the power to take away a natural born citizen's citizenship in such a
fashion. This alone proves that the U.S.
through a naturalization Act of Congress adopted Cruz as a naturalized citizen
of the U.S. at birth and that he is not a natural born citizen.
So, we have seen that Congress has as early as 1790
passed naturalization Acts naturalizing people who were not natural born
citizens under the common law (either not born to U.S. citizen parents or not
born in the United States or both). Congress adopted these persons as citizens
of the United States, either at birth or after birth. If they were born out of
the United States to U.S. citizen parents, they were adopted as citizens of the
United States at birth. If they were born in or out of the United States to
alien parents, they could naturalize after birth.
V. THE CIVIL RIGHTS ACT OF 1866
In 1868 Congress passed the Civil Rights Act of 1866
which provided in pertinent part that all persons born in the United States and
not subject to any foreign power, excluding Indians not taxed, were “citizens”
of the United States. This statute increased the citizens of the United States
only for free blacks whose ancestors had been slaves. These free blacks were
born in the United States. Their ancestors had long lost allegiance to any
foreign power. Hence, their children were born not subject to any foreign
power. Their parents were not viewed as aliens. Their children born to them in
the United States qualified to be citizens of the United States under the
statute.
VI. THE FOURTEENTH AMENDMENT
The Fourteenth Amendment was ratified in 1868. It
provided that all persons born in the United States and “subject to the
jurisdiction thereof” are “citizens” of the United States. U.S. v. Wong Kim Ark
(1898) held that such persons are “citizens” of the United States from the
moment of birth and included children born in the United States to alien
parents who were domiciled and permanently residing in the United States and
neither foreign diplomats nor military invaders. As we can see, the Amendment
caused expansion of U.S. citizenship to children born in the United States to
alien parents. But these new citizens were not natural born citizens under the
common law.
A natural born citizen is a citizen of the United
States “by birth” alone and necessarily becomes a citizen “at
birth.” So, he or she is a citizen “at
birth” due to his or her birth circumstances and nothing more like a positive
law. In other words, it is the birth
circumstances alone that make one a natural born citizen, not the fact that one
became a citizen at birth, which is only a necessary consequent (but not a
sufficient condition) of being a natural born citizen and which can occur due
to the force of the operation of law. Congressional Research Attorney, Jack Yet, Maskell,
maintains that all persons who are citizens “at birth” or “by birth,”
regardless of where born, to whom born, or by what means the status was
acquired, are natural born citizens.
There is no historical or legal evidence for Maskell’s thesis. On the contrary, what our U.S. Supreme Court
has explained about who is a citizen by mere birth and who is a naturalized
citizen demonstrates Maskell’s thesis to be erroneous.
Saying that someone is a citizen “at birth” or “by
birth” does not define a natural born citizen, for the expression is devoid of
the birth circumstances which make one a citizen at birth or by birth. The definition of a natural born citizen
needs birth circumstances. As we have
seen, those circumstances are birth in the United States to U.S. citizen
parents.
The fact that one became a citizen at birth does not
mean that one became such a citizen by the mere act of birth and therefore is a
natural born citizen. It also does not
mean that one is necessarily not naturalized and therefore a natural born
citizen. U.S. v. Wong Kim Ark (1898) explained:
The Fourteenth Amendment of the Constitution, in the
declaration that
all persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside,
contemplates two sources of citizenship, and two
only: birth and naturalization. Citizenship by naturalization can only be
acquired by naturalization under the authority and in the forms of law. But
citizenship by birth is established by the mere fact of birth under the
circumstances defined in the Constitution. Every person born in the United
States, and subject to the jurisdiction thereof, becomes at once a citizen of
the United States, and needs no naturalization. A person born out of the
jurisdiction of the United States can only become a citizen by being
naturalized, either by treaty, as in the case [p703] of the annexation
of foreign territory, or by authority of Congress, exercised either by
declaring certain classes of persons to be citizens, as in the enactments
conferring citizenship upon foreign-born children of citizens, or by enabling
foreigners individually to become citizens by proceedings in the judicial
tribunals, as in the ordinary provisions of the naturalization acts.
Wong Kim Ark, at 702-03.
Wong Kim Ark explained that there are only two
sources of citizenship, by birth or by naturalization. Citizenship by birth is established by the mere
fact of birth under the circumstances specified in the common law that was
incorporated into the Constitution or under circumstances as specified in the
Fourteenth Amendment. Every person born
in the United States to citizen parents (the common law requirement) and every
person born in the United States and subject to the jurisdiction thereof (the
Fourteenth Amendment requirement), becomes at once a citizen of the United
States, and needs no naturalization after birth. The former is a “natural born
citizen” of the United States under the common law (Minor v. Happersett (1875))
and the latter is a “citizen” of the United States at birth by virtue of the
Fourteenth Amendment. Wong Kim Ark. As we can see from Wong Kim Ark, a person
born out of the territory and jurisdiction of the United States cannot become a
citizen of the United States by the mere fact of birth under the birth
circumstances specified in the common law or the Fourteenth Amendment. Rather, such a person can only become a
citizen of the United States by naturalization, i.e., either by the birth
circumstances specified in an Act of Congress declaring children born out of
the territory and jurisdiction of the United States to U.S. citizen parents to be
citizens of the United States at birth or allowing persons born out of the
United States to alien parents to become citizens of the United States after
birth, or by treaty declaring persons born out of the United States to alien
parents to be citizens of the United States after birth (applicable in the case
of the annexation of foreign territory or to American Indians in the
past).
Furthermore, Wong Kim Ark commented on both those
born in the United States who become citizens of the United States at birth and
those born out of the United States who also become citizens of the United
States at birth. It explained that the
former are made citizens automatically at birth by virtue of the common law or
of the Fourteenth Amendment. It added
that those children did not need naturalization by Congress, either at birth or
after birth. It also said that while the
latter are also made citizens at birth, because a naturalization Act of
Congress was the means by which that status was acquired, that child was a
naturalized citizen. Hence, even though
the child became a citizen of the United States automatically at birth and did
not need to go through any naturalization process after birth to be adopted a
citizen of the United States, the Court still held that child to be naturalized
albeit at birth. So, what the Court
looked to for determining if the child was a naturalized citizen was not
whether the child had to go through any naturalization process after birth in
order to be a citizen, but rather whether it was an Act of Congress that made
that child a citizen of the United States at birth. The fact that the child became a citizen of
the United States at birth did not mean that the child was not
naturalized. Only if the child became a
citizen at birth by virtue of either the common law or the Fourteenth Amendment
was the child not naturalized by an Act of Congress. If the child obtained his or her at birth
status by virtue of a naturalization Act of Congress, then the child was
naturalized, even if the child did not have to complete any other
naturalization process after birth. In
other words, that child needing a naturalization Act of Congress to be a
citizen of the United States at birth was naturalized at birth by that very
Act.
Wong Kim Ark demonstrates that simply being a
citizen of the United States at birth does not mean that it was birth alone that
gave that child the right to be a citizen at birth. In the case of children born out of the territory
and jurisdiction of the United States, it is a naturalization Act of Congress
that confers that right, not the mere fact of birth. It also shows that simply being a citizen of
the United States at birth does not mean that one was not naturalized. This means that being a citizen of the United
State at birth does not necessarily mean that one is a natural born citizen,
for that child can still be a naturalized citizen which is not nor can such a
citizen be a natural born citizen.
So being a citizen by birth with no need to rely
upon a naturalization Act of Congress is reserved only to those who are born
under circumstances prescribed by the Constitution. If one satisfies the circumstances prescribed
by the common law, one is a natural born citizen. If one satisfies the circumstances prescribed
by the Fourteenth Amendment, one is a citizen of the United States at birth
which is not the equivalent of a natural born citizen. The status of being a citizen of the United
States at birth is available to natural born citizens and citizens of the
United States at birth under the Fourteenth Amendment or Act of Congress. But being a citizen at birth does not mean
one was not naturalized, for of all the citizens at birth only those who are
born in the territory and jurisdiction of the United States are not naturalized
by an Act of Congress.
VII. CHILDREN BORN ABROAD TO DIPLOMATS OR IN THE
ARMIES OF THE STATE
The case of John McCain also does not help
Cruz. Under the common law, the status
of birth in the country is also extended to children born physically out of the
territory of the United States to U.S. citizen parents who are on diplomatic
service for or serving the military of the United States. These children are “reputed born” in the
United States and do not need a naturalization Act of Congress to make them
citizens of the United States. See
Vattel, § 217. “Children born in the armies of the state or in the house of its
minister at a foreign court. For the same reasons also, children born out of
the country, in the armies of the state, or in the house of its minister at a
foreign court, are reputed born in the country; for a citizen who is absent
with his family, on the service of the state, but still dependent on it, and
subject to its jurisdiction, cannot be considered as having quitted its
territory.”). John McCain was born
outside the territory of the United States (in Panama), but not outside its
jurisdiction, to U.S. citizen parents serving the national defense of the
United States. Because his parents, serving the armies of the United
States, are considered as not having voluntarily quitted the territory of the
United States and as remaining under the jurisdiction of the United States,
their son born to them in the foreign territory is reputed born in the United
States. Hence, McCain was born "in" the United States to U.S.
citizen parents. He is therefore a natural born citizens. Cruz’s
parents had voluntarily left the United States to pursue private economic
interests in Canada. Neither Cruz’s
father nor mother were serving the national defense of the United States
(serving in the military or some other comparable capacity) while in
Canada. So, while in Canada, Cruz’s
parents were under the strict jurisdiction of Canada and not that of the United
States. Additionally, Cruz’s father was
an alien. Hence, Cruz cannot benefit
from the McCain rule.
Hence, a natural born citizen needs neither the
Fourteenth Amendment nor any naturalization Act of Congress to be a citizen at
birth. It is the person’s birth
circumstances alone, birth in the country to citizen parents, which make the
person a natural born citizen.
VIII. THE JACK MASKELL THESIS
Maskell maintains in his new January 11, 2016 article as he did in his earlier edition that "the traditional, historical, and legal meaning" of a natural born citizen is "one who is entitled to U.S. citizenship 'by birth' or 'at birth.' This would include those born 'in' the United States and under its jurisdiction (i.e. 'native' born), even those born to alien parents; those born abroad to U.S. citizen-parents; or those born in other situations meeting legal requirements for U.S. citizenship 'at birth.' Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an 'alien' required to go through the legal process of 'naturalization' to become a U.S. citizen." https://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016#scribd .
Maskell's definition of a natural born citizen is anything but "traditional" and "historical." Rather, it is a revisionist definition of the clause, a product of the "living constitution" existing in his mind and not that of the Framers. The Maskell argument, among many of its defects, blatantly
ignores the text and structure of Article I and II and this constitutional
law. Apart from erroneously believing
that “at birth” means the same thing as “by birth,” Maskell also ignores that due
to one’s birth circumstances one may still need either the Fourteenth
Amendment (if born in the United States) or a naturalization Act of Congress
(if born out of the territory and jurisdiction of the United States) to be made a citizen, regardless of whether those
positive laws make or adopt one as a citizen at birth or after birth. Wong needed the Fourteenth Amendment to make him a citizen of the United States because while he was born in the United States, he was not born to U.S. citizen parents. Cruz himself needs a naturalization Act of Congress to adopt him as a citizen of the United States birth without which he would have been an alien at birth. In other words, in those cases it is still either the
Fourteenth Amendment or a naturalization statute which determines and controls whether
someone is or is not a citizen, regardless of whether the Amendment or statute
makes or adopts one a citizen at birth or after birth. The need for the Amendment or statute does
not disappear simply because the Amendment or statute itself makes or adopts
one as a citizen at birth. If not for
that Amendment or naturalization statute, one being made or adopted a citizen at
birth would be an alien. As to persons born out of the United States, see, for
example, U.S. v. Wong Kim Ark (explained that one born out of the United States to
U.S. citizen parents, not being a citizen at common law can only be a
naturalized citizen through a naturalization Act of Congress and that if it
were not for a naturalization Act of Congress, he or she would be an alien and
not a citizen); Montana v. Kennedy, 366 U.S. 308 (1961) (explained that if a child
is not born in the country, the child needs a naturalization Act of the
sovereign authority to make that child for all intents and purposes a citizen
and without such naturalization the child would be an alien); Rogers v. Bellei, 401 U.S. 815
(1971) (a person born out of the United States to U.S. citizen parents
can be a citizen of the United States only if Congress allows it through one of
its naturalization acts and such person therefore becomes a citizen of the
United States “at birth” through naturalization without which the person would
be an alien); Miller v. Albright, 523
U.S. 420 (1998) (“There are ‘two sources of citizenship, and two only: birth
and naturalization.’ United States v. Wong Kim Ark, 169
U.S. 649, 702 (1898). Within the former category, the Fourteenth
Amendment of the Constitution guarantees that every
person ‘born in the United States, and subject to the jurisdiction thereof,
becomes at once a citizen of the United States, and needs no naturalization.’
169 U.S., at 702. Persons not born in the United States acquire
citizenship by birth only as provided by Acts of Congress. Id., at
703.”). Miller did not say for persons born out of the United States, like
it did for persons born in the United States who become at once citizens of the
United States, that they did not need naturalization. On the contrary, it said that those persons
become citizens of the United States “by birth only as provided by Acts of
Congress.” So, it is not “by birth”
alone. Rather, it is “by birth as
provided by Acts of Congress.” All these
decisions by our U.S. Supreme Court demonstrate that, regardless of whether one
is made or adopted a citizen by the Fourteenth Amendment or naturalized at
birth or after birth by a naturalization Act of Congress, one is still made and
adopted as a citizen by the Amendment or naturalized by the statute without
which the person would be an alien.
Maskell argues that someone who became a
citizen of the United States at birth is not a naturalized citizen of the
United States because Congress tells us so in its naturalization statutes. He points to 8 U.S.C. sec. 1101(a) (23) and
provides this quote: “The term
‘naturalization’ means the conferring of nationality of a state upon a person
after birth, by any means whatsoever.” Maskell
errs on several fronts. First, Maskell
leaves out the beginning part of statutory definition which 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.”
So Congress provided that definition of naturalization only for purposes
of a chapter in its own naturalization statutes and not for purposes of the
Constitution. Second, Congress’s definition
is not for the purpose of demonstrating how the Constitution defines
naturalization, which as we have seen is much broader than how Congress defines
it for purposes of its own statutes. Needless
to say, the Constitution controls what the definition of naturalization is, not
Congress. Congress could not through
such acts change who the Constitution views as being naturalized. Again, the Constitution relies upon the
common law the nomenclature with which the Framers were familiar to define a
natural born citizen. Under that common
law, all children born in a country to parents who were it citizens were
citizens as were the parents. These were
the “natives, or natural-born citizens.”
Minor. Minor also explained that
under that common law all the rest of the people were “aliens or foreigners,”
who could be naturalized as citizens of the United States under the
naturalization Acts of Congress. As we
can see, the Constitution’s definition of naturalization is broader than that
provided by Congress in its naturalization Acts. Under the Constitution, anyone who is not a
natural born citizen is in need of naturalization if that person wants to be a
citizen of the United States.
Maskell also argues that Cruz is a natural born citizen
under § 301(b) of the Immigration and Nationality Act of 1952, a naturalization
Act of Congress that adopts children born out of the United States to U.S.
citizen parents. But that naturalization
Act was not around when the Framers wrote the Constitution in 1787. It therefore cannot possibly determine the
definition of a natural born citizen.
Furthermore, the statute is a naturalization Act of Congress passed by
it under its naturalization powers. It
therefore cannot possibly make anyone a natural born citizen. Finally, the plain and clear text of the Act
demonstrates that it adopts persons to be "citizens" of the United
States, not "natural born citizens" of the United States. Hence, the statute does not do what Cruz
supporters wish it to do. On the other
hand, it the statue could be interpreted to make anyone born out of the United
States a natural born citizen, then there is a constitutional question whether
Congress has such power under its power to establish a uniform rule of
naturalization throughout the United States.
We have seen what the Constitution’s definition of a
natural born citizen is. Both Minor v.
Happersett (1875) and U.S. v. Wong Kim Ark (1898) confirm that the Framers’
definition was a child born in the United States to U.S. citizen parents. Hence, the Framers made a critical
constitutional distinction between a "citizen" and a "natural
born citizen." The only birth
circumstances allowing a child to be a natural born citizen were birth in the
United States to parents who were both its citizens. In contrast, “citizens” were everyone else
born under different birth circumstances and who were nevertheless made citizens
by a naturalization Act of Congress or treaty.
Later on in our history, Congress expanded those birth circumstances and
thereby made more “citizens” through the Civil Rights Act of 1866 and the
Fourteenth Amendment. These latter
enacted laws allowed children born in the United States to alien parents to
also qualify as citizens of the United States “at birth” (not to be conflated,
confounded, and confused with the natural born citizens). Our U.S. Supreme Court has for years
established that anyone who is born out of the United States to U.S. citizen
parents is a naturalized citizen of the United States, but only by virtue of a
naturalization Act of Congress and in default thereof an alien at birth. They are not "native-born citizens"
under the Amendment. Hence, being
naturalized and not even meeting the Fourteenth Amendment’s minimum
constitutional standard of citizenship, i.e., born in the United States while
subject to its jurisdiction, they are not nor can they be natural born
citizens, who represent the ceiling standard of U.S. citizenship.
Congress has the power under the Constitution to
"establish an uniform Rule of Naturalization. . . throughout the United
States" and that under that power Congress creates "at birth"
citizenship. Before any constitutional
question can be analyzed as to whether one is a natural born citizen, one must
first demonstrate that one is at least a citizen of the United States "at
birth" under one of these statutes.
But satisfying any such statutory definition does not mean that one has
satisfied the Constitution's definition of a natural born citizen. The 1790 Naturalization Act said that
children born out of the limits and jurisdiction of the United States to U.S.
citizen parents “shall be considered as natural born citizens." That the statute required, however, that both parents be U.S.
citizens. We know that the statute was
repealed by the 1795 Naturalization Act which said that those same children
“shall be considered as citizens of the United States,” hence removing the
earlier use of “natural-born citizens.”
Evidently, Congress, with the lead of James Madison and with the
approval of President Washington, concluded that there should not be any
confusion as to whether those children were actually natural born citizens.
The naturalization Act of Congress that applies to
Cruz who was born in 1970 is § 301(b) of the Immigration and Nationality Act of
1952. Hence, even if Cruz can satisfy
all the conditions of this statute, the question still remains whether his
"at birth" status under the statute satisfies the constitutional
definition of a natural born citizen. If
Cruz does not satisfy the statutory requirements, then we never get to the
constitutional question. If Cruz does
satisfy all the conditions of the statute which makes him a citizen of the
United States “at birth,” we then have to examine if the statute defines a
natural born citizen. If it does not, we
do not get to any constitutional question.
We have seen that Congress’s naturalization statutes contain very
specific requirements (condition precedent and condition subsequent) which
Congress has changed throughout our history.
Our law provides that for persons born out of the United States, U.S.
citizenship is determined by the statute in effect at the time of the person’s
birth, unless a later law changes that person’s birth status
retroactively. Montana v. Kennedy,
366 U.S. 308, 312 (1961). See also 7
U.S. Department of State Foreign Affairs Manual 1131.1-2 (“The law applicable
in the case of a person born abroad who claims citizenship is the law in effect
when the person was born, unless a later law applies retroactively to persons
who had not already become citizens”).
This rule alone tells us that a naturalization Act cannot serve as the
basis for making one a natural born citizen. Surely, the Framers did not expect the
definition of a natural born citizen to change over time at the whim of
Congress without a constitutional amendment.
If the Congressional statute can be interpreted to
mean that Congress intended to include children that it makes as "citizens
of the United States "at birth" under its statutes to be the
equivalent to the natural born citizens, then we have to analyze whether the
statute is unconstitutional, for Congress only has power to establish a uniform
rule of naturalization throughout the United States. Both the 1790 and 1795
Naturalization Acts demonstrate that Congress's early naturalization Acts did
not define a natural born citizen and that Congress made it clear that it never
intended to do so. Congress has never
again even mentioned the clause "natural born citizen" in any of its
naturalization Acts and there does not exist any evidence from any
Congressional activity that Congress through any one of its naturalization Acts
ever intended to define a natural born citizen through one of its
naturalization Acts. Hence, showing that
one is a citizen of the United States "at birth' under a naturalization
Act of Congress does not establish that one is a natural born citizen. Even if it did, the question then is whether
that naturalization statute is constitutional given how the Constitution
defines a natural born citizen under a specific set of birth
circumstances. Given that Congress in
matters of citizenship has power only to establish a uniform rule of naturalization
throughout the United States, any attempt by Congress to add by statute rather
than by constitutional amendment additional birth circumstances and therefore
people who may be natural born citizens and therefore eligible to be President
would be an unconstitutional exercise of Congress’s naturalization powers.
IX. THE CASE OF WINSTON CHURCHILL
The case of Winston Churchill, born in Great Britain
like Cruz born in Canada, demonstrates nicely the impact that a naturalization
Act can have on one’s life and how it was a naturalization statute and not his
birth circumstances alone that made Cruz a citizen of the United States “at
birth.” Cruz, born in Canada to a U.S.
citizen mother and a non-U.S. citizen father, can be Prime Minister of Canada,
like Winston Churchill, born in Great Britain to a U.S. citizen mother and a
British citizen father, was Prime Minister of Great Britain. See Mario Apuzzo,
"If Winston Churchill Was Not Even a Citizen of the United States, How Can
Ted Cruz Be Its Natural Born Citizen,?" available at http://puzo1.blogspot.com/2016/01/if-winston-churchill-was-not-even.html
. Churchill was not even a citizen of
the United States, let alone a natural born citizen because when he was born in
1874 there was no naturalization Act of Congress in place making him a
citizen. 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 Naturalization 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,
along with those of 1934 and 1940, Cruz would be an alien. The critical point is that Cruz became a
citizen by way of a naturalization statute.
Without that statute, he would have been an alien as was Churchill. Needing a naturalization statutes to make him
a citizen, Cruz is not nor can he be a natural born citizen. With respect to whether he is a natural born
citizen, it changes nothing that the naturalization statute made Cruz a citizen
of the United States “at birth.” It was
not his birth that made him a citizen (Churchill had the same birth circumstances),
but rather the naturalization statute.
Churchill and Cruz were born under the same
birth circumstances, both born in a foreign country to a U.S. citizen mother
and a non-U.S. citizen father. Why
should Winston Churchill not be a natural born citizen and Ted Cruz be a
natural born citizen when they were both born in a foreign country to U.S.
citizen mothers and non-U.S. citizen fathers?
If Cruz is a natural born citizen, then Churchill should have been too
and he should have known it. But we know
that Churchill was not and he also knew that.
If Churchill was not a natural born citizen, then neither is Cruz. Cruz seizes upon the fact that Congress just
happened to come along after Churchill was born and changed the naturalization
Act which lucky for him, made him a citizen of the United States at birth. But surely, that naturalization Act did not
make the otherwise alien Cruz (which is what Churchill was) a natural born
citizen. Churchill honestly admitted
that he was not a natural born citizen of the United States. But then Ted Cruz
believes that he operates under different constitutional rules and that those
different rules should apply to him merely because he wants to be
President. Cruz, being the
constitutional scholar, conservative, and religious persons that he says he is,
should just admit like Churchill that he is not eligible to be President of the
United States and Commander in Chief of the Military without a constitutional
amendment so providing.
So, we have seen, that one “did not have to take any
steps or go through a naturalization process at some point after birth"
does not prove that one is a natural born citizen. The
only thing it proves is that one is a “citizen” of the United States “at birth.”
It does not prove that one is a citizen “by birth,” let alone that one is a
natural born citizen. It does not prove
that one was a citizen “by birth” alone, which status is reserved under the
Constitution only for persons born in the United States. The latter include the “natural born
citizens” of the United States under the common law and the “citizens” of the
United States “at birth” under the Fourteenth Amendment, who if not also
satisfying the natural born citizen birth circumstances, i.e., born in the
country to citizen parents, are not natural born citizens.
X. ORIGINALIST INTERPRETATION V. THE LIVING
CONSTITUTION
Some argue that we should not define a natural born
citizen using the “originalist” approach to constitutional interpretation. That approach looks to the meaning of terms
and phrases that the Framers and Ratifiers gave to them at the time they
adopted and ratified it. Under
constitutional originalism, today we are bound by the historical meaning that
terms and phrases in the Constitution had when it was adopted and
ratified. These persons advocate for a
“living Constitution,” one which evolves with time to meet the changing needs
of American society. They maintain that
the original definition of the clause is too narrow and rigid and no longer
serves its original purpose. They
maintain that one is not being “open minded” when one takes the original approach
to constitutional interpretation. There
are several problems with this argument.
First, the reason why societies pass laws is so that
people can be guided by a code of conduct.
The text of those laws tell the people exactly what they can and cannot
do. It is that very text which brings
certainty and predictability to human affairs.
The text of a law must be honored if we are to be guided by laws rather
than by the whim of man. As to the
“living” Constitution, Justice Black, Douglas, and Marshall in their dissent in
Bellei said it well:
The Constitution, written for the ages, cannot rise
and fall with this Court's passing notions of what is “fair,” or
"reasonable," or "arbitrary." . . . This precious
Fourteenth Amendment American citizenship should not be blown around by every
passing political wind that changes the composition of this Court. . . . Of
course the Court's construction of the Constitution is not a "strict"
one. On the contrary, it proceeds on the premise that a majority of this Court
can change the Constitution day by day, month by month, and year by year,
according to its shifting notions of what is fair, reasonable, and right. There
was little need for the founders to draft a written constitution if this Court
can say it is only binding when a majority finds it fair, reasonable, and right
to make it so. That is the loosest construction that could be employed. It is
true that England has moved along very well in the world without a written
constitution. But with complete familiarity with the English experience, our
ancestors determined to draft a written constitution which the members of this
Court are sworn to obey. While I remain on the Court, I shall continue to
oppose the power of judges, appointed by changing administrations, to change
the Constitution from time to time according to their notions of what is
"fair" and "reasonable." I would decide this case not by my
views of what is "arbitrary," or what is "fair," but rather
by what the Constitution commands.
Id. at 837, 844-45.
The Framers, Ratifiers, and the people have spoken. The Constitution contains the natural born
citizen clause and anyone wanting to be President and Commander in Chief must
satisfy its requirements. This clear
command cannot be ignored simply because we want certain individuals to be
eligible to be President today.
Second, the Framers inserted the natural born
citizen clause into presidential and commander eligibility so as to keep out of
those offices foreign and monarchical influence.[3] Any interpretation of the natural born
citizen clause under a “living and breathing” Constitution, by expanding
eligibility for the Office of President and Commander to others who were not
natural born citizens in the eyes of the Framers, is an assault upon the
Framers’ purpose for requiring future Presidents and Commanders that they be
natural born citizens. The same national
security concerns regarding the Office of President and Commander in Chief of
the Military exist today as they did when the Framers adopted and the Ratifiers
ratified the Constitution. Today as then
we are concerned with foreign influence infiltrating our national government
and particularly the Office of President and Commander in Chief of the
Military. If we are to give force to the
Framers’ purpose for requiring future Presidents and Commanders to be natural
born citizens, then we can only define the clause as they did when they drafted
and adopted the Constitution.
Third, we have seen the important national security
purpose that the natural born citizen clause plays in our nation. If we do not like the way the Framers defined
a natural born citizen to achieve that purpose and given the important national
security purpose that the clause serves, its meaning should be changed by
constitutional amendment. Passing such
an amendment requires ratifying a constitutional amendment which will involve
the consent of the nation.
Fourth, there is no more need today than there was
in 1787 to have children born out of the United States be found to be natural
born citizens. As we have children born
out of the United States to U.S. citizen parents today, so did the Founding
generation. The situations that provided
exceptions to the rule, birth outside the country to parents who were either
serving the armies of the nation or in diplomatic service, apply today as they
did then. But the Founding generation
did not see birth out of the United States to U.S. citizen parents who were out
of the country on personal or private business as giving ground for their child
to be found to be a natural born citizen.
There simply is nothing happening today which should compel a change in
that regard without passing a constitutional amendment so providing for that
change. Today we cannot say that it no
longer makes sense given our needs today to be bound by the original definition
of a natural born citizen.
So, we have seen that under the originalist approach
to constitutional interpretation, Ted Cruz is not even a citizen of the United
States, let alone a natural born citizen.
Under Congress’s naturalization powers, he is a citizen of the United
States at birth, but only by virtue of a naturalization Act of Congress. Congress in later years accepted citizen
mothers as eligible to transmit their U.S. citizenship to their children born
out of the country and it is that acceptance which makes Cruz a citizen of the
United States at birth. But that change
has nothing to do with defining a natural born citizen. Hence, today Ted Cruz is at most a “citizen”
of the United States from the moment of birth only by virtue of a
naturalization Act of Congress. He is
not and cannot be a natural born citizen.
There is no basis to the argument that the original definition of a
natural born citizen should be abandoned and a more flexible one should be
adopted because our needs today require it.
If the American people do not like the original definition of a natural
born citizen, then let them change it with a duly ratified constitutional
amendment.
XI. THE MEANING OF A NATURAL BORN CITIZEN AS BEING
HOPELESSLY LOST
Finally, there are even some who argue that the
natural born citizen clause is so ambiguous that it has been lost to history or
that the Founders and Framers did not agree on any one particular definition of
the clause. They argue that the Founders
and Framers were not precise in how they defined citizenship. They argue that since the Founders and
Framers did not give us a definition of the clause, we have no choice today but
to give it one ourselves. But there is
no reason to just throw up our hands as if defeated by ignorance. The simple
response to this argument is that sometimes interpreting the Constitution is
not easy. We saw in District of Columbia v. Heller 554 U.S. 570 (2008) what the U.S.
Supreme Court had to do to determine the meaning of the Second Amendment right
to bear arms, a clause that was never examined in the history of our
nation. The tools used by the Court can
be used to interpret the meaning of the natural born citizen clause. If fact, I have used those same tools here to
interpret the natural born citizen clause.
I have examined the text and structure of the Constitution and presented
historical and legal evidence, although not exhaustive given the need to keep
this article as short as possible, that demonstrates how the Framers defined a
natural born citizen. The reader is able
to decide whether the case has or has not been sufficiently made. Knowing how the Framers and our nation
originally defined the clause, there is no license to just give the clause
whatever definition is convenient to those living in the politically charged environment of today.
XII. APPLICATION TO TED CRUZ, ALONG WITH BARACK
OBAMA, MARCO RUBIO, BOBBY JINDAL, AND NIKKI HALEY
Given the Framers’ definition of a natural born
citizen, Donald Trump is right and the Illinois Board of Elections is wrong.
Ted Cruz is not an Article II “natural born citizen.” He was born in a foreign nation, Canada,
i.e., out of the territory and jurisdiction of the United States, presumably to
a U.S. citizen mother and an alien father.
Born out of the territory and jurisdiction of the United States to an
alien father, the Framers at the time they drafted and adopted the Constitution
would not have seen Cruz at his birth as a citizen of the United States, let
alone a natural born citizen. The
Framers through the natural born citizen clause sought to provide a “strong
check’ on foreign and monarchical influence infecting the highest office in the
land. Under the Naturalization Acts of 1790, 1795,
1802, 1804, and 1855, Cruz would have had to naturalize, either derivatively at
the time his father’s naturalization or
on his own upon reaching the age of majority.
Such naturalization would have required his renouncing any allegiance to
any foreign power. Cruz was born with
dual citizenship of the United States and Canada. At the time of the ratification of the
Constitution, Canada was part of the British Empire. The Framers never would have permitted a
person born in Canada and thereby a natural born subject of Great Britain to be
eligible to be President and Commander in Chief of the Military. Things are different with Canada today, but
Canada is still a foreign nation and would have still been in the eyes of the
Framers. Cruz did not renounce the
Canadian citizenship with which he was born until 2014, when he was 43 years
old, and he wants to be elected President only two years after that
renunciation.
At best, under the applicable naturalization Act of
Congress, if Cruz can prove that he satisfies all of its conditions, Cruz is a naturalized
“citizen” of the United States “at birth” (not “by birth”) by virtue of the
Immigration and Naturalization Act of 1952 (undoubtedly a naturalization Act of
Congress) without which he would have been born an alien. But
that is not the end of the story. Cruz
is a naturalized "citizen" of the United States "at birth,"
but only by virtue of a naturalization Act of Congress (The Immigration and
Naturalization Act of 1952). He is not a natural born citizen as the
Constitution defines that clause. He is
not an Article II "natural born citizen" "by birth" only by
virtue of his birth circumstances, as recognized and confirmed by the common
law to which the Framers looked to define a natural born citizen. As we have seen only the birth circumstances
of being born or reputed born in the United States to parents who were both
U.S. citizens at the time of the child’s birth can make one a natural born
citizen. With that being the only
definition of a natural born citizen under the Constitution, Congress,
throughout our history and down to the present, did not nor did it intend to
make anyone a natural born citizen under any of its naturalization Acts,
including the one upon which Cruz relies for his “at birth” citizenship
status. The Act does not even mention a
natural born citizen. If Congress did so
intend and the statute is read to do just that, then the statute is
unconstitutional. Hence, any
interpretation of the statute as making anyone a natural born citizens is to
give the statute an unconstitutional reach.
Barack Obama,[4] Marco
Rubio, Bobby Jindal, and Nikki Haley, all born in the United States to two
alien parents, are also not natural born citizens. They are all “citizens” of the United States
“at birth” under the Fourteenth Amendment, but not Article II “natural born
citizens” of the United States. Having
their alienage, as inherited through jus sanguinis from their alien parents,
removed by the Fourteenth Amendment, they are in reality also naturalized “at
birth,” although by the Fourteenth Amendment and not by a naturalization Act of
Congress.
XIII.
CONCLUSION
Being neither “a natural born Citizen, [n]or a
Citizen of the United States, at the Time of the Adoption of this
Constitution,” Ted Cruz, Barack Obama, Marco Rubio, Bobby Jindal, and Nikki Haley are not constitutionally eligible to the Office of
President. Article II, Section 1, Clause 5. For further analysis
and discussion of the difference between a “citizen” of the United States and a
“natural born citizen” of the United States, see Mario Apuzzo, A Citizen is One Thing, But a Natural Born
Citizen is Another, http://puzo1.blogspot.com/2015/11/a-citizen-is-one-thing-but-natural-born.html
Mario Apuzzo, Esq.
February 5, 2016
http://puzo1.blogspot.com
####
Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved
[1] On July 25,
1787, 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, which permitted dual and
conflicting allegiance at birth, did not provide that strong check on foreign
influence for which Jay was looking.
[2] Jack Maskell
erroneously argues in his updated article, Qualifications
for President and the “Natural Born” Citizenship Eligibility Requirement
(January 11, 2016), available at https://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016#scribd , that the English Parliament’s early
naturalization Acts changed the common law and actually became common law. He then makes the quantum leap in logic and
says that therefore English common law accepted children born out of the King’s
dominion to English subject parents to be natural born subjects. From there he tells us, although without any
historical or legal evidence to support his conclusion, that the Framers relied
upon that English common law to define an Article II natural born citizen. Through such a fallacious argument, he
attempts to show that persons born out of the territory and jurisdiction of the
United States to U.S. citizen parents are natural born citizens also under an
“originalist” interpretation of the Constitution. The simple answer to his flawed argument is
that it was the English naturalization Acts themselves that naturalized those
children born out of the King’s dominion to be treated for all intents and
purposes as if they were natural-born subjects, not the English common
law.
[3] The historical
record is replete with contemporaneous and later evidence that the Framers
required future Presidents and Commanders to be free of monarchial and foreign
influence. One example from later years
will suffice. James Kent, explained in
his 1 Commentaries on American Law (8th
ed. 1854):
The Constitution requires (a) that the
President shall be a natural born citizen, or a citizen of the United States at
the time of the adoption of the Constitution, and that he shall have attained
to the age of thirty-five years, and shall have been fourteen years a resident
within the United States. Considering the greatness of the trust, and that this
department is the ultimately efficient executive power in government, these
restrictions will not appear altogether useless or unimportant. As the
President is required to be a native citizen of the United States, ambitious
foreigners cannot intrigue for the office, and the qualification of birth cuts
off all those inducements from abroad to corruption, negotiation, and war,
which have frequently and fatally harassed the elective monarchies of Germany
and Poland, as well as the pontificate at Rome.
Id. at 293.
Story
first said that the President must be a “natural born citizen” and then later
he said that he must be a “native citizen of the United States.” As we shall see below, Vattel and the
unanimous U.S. Supreme Court in Minor v.
Happersett (1875) gave to “natives” the same meaning that they gave to
“natural-born citizens,” i.e., born in the country to parents who were its
citizens. In later years, the expression
“native-born citizen” took on the more limited meaning of born in the country
while subject to its jurisdiction and which describes a citizen of the United
States “at birth” under the Fourteenth Amendment. See U.S. v. Wong Kim Ark (1898) (included as
qualifying alien parents to whom a child is born in the United States to satisfy
the jurisdiction requirement of the Fourteenth Amendment only those domiciled
and permanently residing in the United States and who were neither foreign
diplomats nor military invaders at the time of the child’s birth). There is never any question that a child born
in the country to citizen parents, i.e., a native, or natural born citizen, is
born in the country while subject to its jurisdiction. Hence, when it comes to “natives, or
natural-born citizens,” there never is any need to engage in jurisdiction
analysis as there is to determine whether one is a “native-born citizen” under
the Fourteenth Amendment. Nevertheless,
there has been a tendency with courts, scholars, and commentators to conflate,
confound, and confuse a native-born citizen under the Fourteenth Amendment with
an Article II natural born citizen.
[4] Never having
presented an original or certified true copy of an original long-form birth
certificate to any court in which he was sued, it is presumed that Obama was
born in the United States. Still, he is
not an Article II natural born citizen because he was born to a U.S. citizen
mother and an alien father. If Obama was
born out of the territory and jurisdiction of the United States like Cruz, he
would have been a citizen of the United States only if a naturalization Act of
Congress allowed it. The law that
applied at the time of Obama's birth on August 4, 1961 (which is the same law
that applied to Cruz) required that his U.S. citizen mother have physical
presence in the United State prior to Obama's birth for a period of at least 10
years, 5 of which were after she turned 14 years old. Ann Dunham was only
18 when Obama was born. Hence, she could not possibly have met the
physical presence requirement demanded by the applicable naturalization Act
(the Immigration and Nationality Act of 1952). So, if Obama was not born
in the United States, he would not have qualified, like Ted Cruz did whose
mother was 35 years old when he was born, to be a naturalized citizen of the
United States at birth under any naturalization Act of Congress. He would have
had to become a naturalized citizen of the United States after birth through
subsequent naturalization under one of those Acts.
