Monday, March 25, 2013

Senator Ted Cruz Is Not a “Natural Born Citizen” and Therefore Not Eligible to Be President

Senator Ted Cruz Is Not a “Natural Born Citizen” and Therefore Not Eligible
                                               to be President

                                           By Mario Apuzzo, Esq.
                                                 March 25, 2013

It is pretty amazing to see to what lengths some will go to convince us that their favorite political candidate is eligible to be President. Greg Conterio has written an article in which he concludes that Senator Ted Cruz, who was born in Canada to a U.S. citizen mother and non-U.S. citizen father, is eligible to be President. The article can be read at .

I do not object to Mr. Conterio having a view that is different from mine on the definition of a "natural born Citizen." What is most objectionable is how he goes about attempting to prove that he is correct and others are wrong. In referring to those who do not agree with him, Mr. Conterio uses language such as “ ‘Birtherism’ and the Tyranny of Ignorance,” (the title of his article), “resurgence of the ‘Birther’ phenomenon,” “depth of ignorance,” “false assertions,” “sort of thing,” “completely wrong,” “nonsense,” and “twist themselves into knots.” What is really amazing is that he also tells us that it only took him “a few minutes to do a quick internet search” to come up with the correct answer on the meaning of a “natural born Citizen” and how Ted Cruz meets that definition. And how could I not mention that he tells us that “[s]ome guy with a blog, or some attorney with some bizarre sounding legal theory are NOT authoritative sources.” I wonder what attorney Mr. Conterio has in mind.

Mr. Conterio’s sole source for his definition of a “natural born Citizen” is Congressional statutes (8 U.S.C. Sec. 1401 et seq.). He cites and quotes those statutes and while conceding that they at most only declare persons to be “citizens of the United States” at birth, he says that Congress’s expression has the equivalent constitutional meaning as a “natural born Citizen.” There are several problems with Mr. Conterio’s argument.

First, given that the Founders and Framers inserted the “natural born Citizen” clause into the Constitution and they must have had a purpose for doing so, the clause had to have a specific meaning. As we shall see below, that meaning was a child born in a country to parents who were its “citizens” at the time of the child’s birth. The fact that there was in the Constitutional Convention no debate on the meaning of the clause gives us more evidence that the clause must have had a settled meaning. We also know that the Founders and Framers relied upon the clause to keep foreign influence and royalty out of the office of President and Commander in Chief. The historical record shows that the Founders and Framers were most concerned about foreign influence invading the administration of our new government. So, while they did have a concern with royalty occupying the office of President, the purpose for using the “natural born Citizen” clause was broader. As John Jay stated in his famous July 25, 1787 letter to then-General George Washington, he proposed that the Commander in Chief of the Military be a “natural born Citizen” so as to provide a “strong check to the admission of Foreigners into the administration of our national Government.” The historical record contains statements from other Founders, Framers, and commentators as to the need to keep foreign influence out of the Office of President and Commander in Chief. Moreover, even assuming that the purpose was only to keep royalty out of the White House, the Founders and Framers would have required that a child be born to parents who were U.S. citizens to make sure that their child at the moment of birth did not inherit from either one of his parents titles of royalty or nobility.

So, we can see that the “natural born Citizen” clause, by requiring birth in the country to citizen parents, served a great purpose for the Founders and Framers. It not only was designed to keep foreign influence out of the Office of President and Commander in Chief. But it was also designed to make sure that those high and powerful civil and military offices would never end up in the hands of royalty or nobility. In short, the Founders and Framers through the clause sought to preserve the new constitutional republic not only for the present, but also for Posterity.

The historical record also shows that at first, the Framers were going to allow Congress to appoint the President. But they decided against that idea because they feared the foreign influence running rampant in Congress would spill over onto the office of President and Commander in Chief. So they decided on the Electoral College, a group of electors who would come together only once every four years to elect the President and then disband. The process was explained by Hamilton in Federalist No. 68: The Mode of Electing the President (Hamilton). In referring to the President, Alexander Hamilton described him as the “person to whom so important a trust was to be confided. . . .” He described the Office of President as “so important an agency in the administration of the government . . .” “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?” Alexander Hamilton, Federalist, no. 68, 457-61 (12 Mar. 1788). So we can see why the Framers took it out of the hands of Congress to elect the President and why they gave that task to the Electoral College.

Yet, Mr. Conterio wants to give Congress the power, not to confirm what that settled meaning of a “natural born Citizen” was, but to actually change it as it wishes and when it wishes. On the contrary, Congress through Article I, Section 8, Clause 4 only has the power to make uniform the laws of naturalization. It would not only be contradictory to give Congress the power to change the meaning of “natural born Citizen” through its naturalization powers, but would also fly in the face of the Framers having taken away from Congress the power to elect the President and the reason for doing so.

Second, Mr. Conterio does not realize that by giving Congress the power to define a “natural born Citizen” as it wishes and when it wishes he is giving Congress the power to amend the Constitution without constitutional amendment. I wonder what Mr. Conterio would say if he knew that from 1802 to 1855, any child born out of the United States, even to citizen parents, was considered by Congress to be an alien. What does that do to Mr. Conterio’s thesis of Congress deciding by statute who is a “natural born Citizen?” What did Congress’s 1802 statute do to Ted Cruz’s eligibility to be President? We know that the citizens made the Constitution and not vice versa. But yet, Mr. Conterio would have Congress decide who is a “natural born Citizen,” even giving to it the power to deny that status to a child who inherits by nature from his or her parents the right to be born in a free and independent republican America.

Third, Mr. Conterio assumes without proving that a “citizen at birth” or “citizen from birth” is the constitutional equivalent to an Article II “natural born Citizen.” I have argued at length that the clause is “natural born Citizen” and not any other variation. I have also argued at length and historical sources, Acts of Congress, and U.S. Supreme Court precedent support me, that the phrases do not have the same constitutional meaning. Being a “citizen at birth” or “citizen from birth” is only one of the necessary conditions of being a “natural born Citizen.” The other two necessary conditions are birth place and birth parents. All three of these conditions, birth time, birth place, and birth parents are necessary and sufficient conditions to be a “natural born Citizen.” See Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758) (explained that the “natives, or natural-born citizens, are those born in the country, of parents who are citizens.” .; Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (“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”); U.S. v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (same). Contra Ankeny v. Daniels; Tisdale v. Obama; Fair v. Obama (appeal pending); Farrar v. Obama; Galasso v. Obama; Jackson v. Obama; Paige v. Obama (appeal pending) (all found that mere birth in the United States is generally sufficient to make one a “natural born Citizen;” none of these Obama cases are decisions of our U.S. Supreme Court).

Fourth, Mr. Conterio totally discounts the source to which the Founders and Framers would have looked for their definition of a “natural born Citizen.” When the Framers adopted the Constitution in 1787, there were no acts of Congress in place. Hence, the Framers could not have possibly looked to Congressional Acts which came later in time for the meaning of the clause. They had to have looked somewhere else for their meaning. Minor told us what that source was. It said it was the common law. And under the definition that Minor gave us of a “natural-born citizen,” a concept that belonged to the nation to define and not to any one individual state, we know that that common law was not the English common law, which had application only in the states and which the U.S. Supreme Court many times when interpreting terms in the Constitution consulted on matters that affected state local issues, but rather American national common law which had its source in the law of nations as found in Vattel’s Section 212 of The Law of Nations.

Fifth, Mr. Conterio does not realize that all expressions of U.S. citizenship found in the positive laws such as the Fourteenth Amendment, Acts of Congress, and treaties are nothing but exceptions to the American national common law definition of a “natural born Citizen.” It is telling that none of these laws include within their text the words “natural born Citizen.” Rather, they all use “citizen of the United States.” As Minor also explained, at common law, anyone who did not meet the definition of a “natural-born citizen” was an “alien or foreigner.” Hence, citizens made through these other positive laws are not “natural born Citizens,” but rather “citizens of the United States,” either at birth or after birth. They are given that status by positive law creating exceptions to the American national common law rule. Those exceptions do not drive or become the definition of a “natural born Citizen.” Rather, they only allow the making of more “citizens of the United States" and in the end prove through the exceptions themselves what the correct definition actually is. See Wong Kim Ark (which created another exception under the Fourteenth Amendment to the general national common law definition of a “natural-born citizen” by distinguishing a child born in the country to alien parents from a “natural born” child born in the country to “citizen” parents and finding that the former, because of being born in the country was as much a “citizen” as the latter, found Wong, who was born in the United States to domiciled and resident alien parents who were “subject to the jurisdiction” of the United States, to be a “citizen of the United States” at birth by virtue of the Fourteenth Amendment (not to be conflated and confounded with a “natural-born citizen”)).

So, now we have Mr. Conterio trying to convince us that any argument on the meaning of a “natural born Citizen” that does not fit well with him can only come from someone or something that is not only not an “authoritative source,” but also a “tyranny of ignorance.” On the other hand, he tells us that he is an “authoritative source” and well-informed on the “natural born Citizen” clause. Readers can decide for themselves what are the authoritative sources, what is logical and based on reason, and from all that what is the correct meaning of an Article II “natural born Citizen.” A thoughtful and thorough analysis of all the historical and legal sources should lead the critical thinker to the unshakable conclusion that an Article II “natural born Citizen” is a child born in a country to parents who were it “citizens” at the time of the child’s birth.

Since Ted Cruz was not born in the country (he was born in Canada) and he was not born to “citizen” parents (his father was not a U.S. citizen at the time of his son's birth), he is not and cannot be a “natural born Citizen.” Under an Act of Congress (8 U.S.C. Sec. 1401(g)), he is a "citizen of the United States" at birth. This means for him that he is eligible to be a Senator, who at a minimum only has to be a “citizen of the United States” for nine years, but not eligible to be President, who must be a “natural born Citizen.”

Mario Apuzzo, Esq.
March 25, 2013