Ted Cruz is Ineligible for the Presidency

[laklak]

Not all under 30s. There is a surprisingly large Libertarian contingent in my kids generation(s). Has a lot to do with legalizing dope, but also with taxation.

Another decade will do, by then I'll either be worm food or living large somewhere in Latin America or the Caribbean. Might even go back to Africa. I'll certainly have me, the missus and our money out of the country before Bernie or a Bernie clone comes a'knockin. I'd like at least four years of a GOP Prez and Congress so real estate prices rise to the point it makes sense to sell up and GTFO Dodge.

[L'Emmerdeur]

Being born overseas to two American parents doesn't make you a "Natural Born" Citizen. It can make you a "citizen at birth" but that's different than the constitutional term, "Natural Born Citizen." The only customary exceptions were if you were born by happenstance on an airplane, in an airport, or on a military base or embassy where it is arguably American jurisdiction. Or, if your parents were on vacation or something. But, even that is not tested or settled law. Certainly if they lived overseas, you aren't a natural born citizen just because mom and dad are American.

Can you cite anything to support your assertion regarding "customary exceptions"? It seems to me that the law in the United States incorporates not only jus solis but also jus sanguinis. Maybe if you take a look at the "Common Law and Persons Born Abroad to Citizen-Parents" section of the report from the Congressional Research Service (page 17 of the PDF, marked as page 14) that I cited upthread it might clarify matters for you.

A relevant quote from that source:

Other legal scholars have contended that long-standing and commonly accepted principles incorporated into English law by statute over several centuries, even if they did not merely “declare” already-existing English common law, actually modified the corpus of the common law to incorporate such principles, and that this body of law was the one known to the framers, such that the provisions of the Constitution must be interpreted in that light. Charles Gordon, who was then general counsel for the United States Immigration and Naturalization Service, explained in 1968 that in addition to recognizing birthright citizenship as to the place of birth (jus soli), “the consistent practice over several centuries, in England and the United States, [was] to recognize citizenship status by descent.” Gordon thus concluded that “[t]he common law, as it had developed through the years, recognized a combination of the jus soli and the jus sanguinis,” and that the English common law adopted by the United States had been expanded by the longstanding statutory inclusions over the centuries in England:

[T]here were doubts concerning the applicability of the jus sanguinis under the early common law. But those doubts were eliminated by statutes enacted in England before the American Revolution, which became part of the body of law followed in England and passed on to this country. It can be argued ... that this total corpus was the common law which this country inherited, and that it persevered unless specifically modified.

That the United States was not confined to only the narrow common law of England in our usages and applications, was noted by the Supreme Court in an opinion authored by Justice Story in 1829:

The common law of England is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted, only that portion which was applicable to their situation.

It was, in fact, common in the states after independence, upon the adoption of their constitutions and statutes, to incorporate both the common law of England, as well as the statutory laws adopted by Parliament and applicable in the colonies up until a particular date. There is thus some argument and indication that it was common for a “modified” English common law—modified by long-standing provisions of English statutory law applicable in the colonies—to be among the traditions and bodies of law incorporated into the laws, applications, usages, and interpretations in the beginning of our nation.

[L'Emmerdeur]

A good piece on this topic: "Ted Cruz: Is He or Isn’t He a Natural Born Citizen?" | History News Network

The author examines the issues, but neglects to really come down on one side or another, preferring instead a finger poke in the eye for "originalists."

Here is my “originalist” conjecture. “Right of blood” versus “right of place” was a non-issue for the people of those times—even for the ever-fastidious framers, who argued at great length about so much else. The Founding Generation took no notice and didn’t really care; they just knew that no foreigner should be president. If forced to declare, they would probably say there had to be some connection by both place and blood, just to be safe. A French couple, while traveling, has a child on American soil? Not good enough. An American couple has a child in England, and the family remains there? We need our president to be more American than that, define it as you will. If the framers had more time, and if they deemed it as significant as we do right now, they might have figured something out, but they didn’t. Instead, by their failure to act, they left it to Congress to conjure a definition.

But this is only a conjecture, and we can’t build a case on that. Try as we might, originalism in any form fails us here. But if we use the originalist standard only at our ease and pleasure, can it count as a “standard”?

How ironic that Ted Cruz, who has promised to appoint only originalist justices, has become the poster-child—or more precisely, poster-infant—for originalism’s deficiency.

[JimC]

Or we could all just agree that in this age of global mass communication, where and under what circumstances someone is born should play no role on whether she can become President.

Someone burn and raised in the US by US parents can still become influenced by foreign ideologies or governments. So that is not a good criteria to prevent moles. On the other hand, today all candidates for President have decades of well documented behaviour in the public. The Electorate knows how candidates behaved during their life so far. Something you could not know in the 19th century when there was so little flow of information.

But don't expect the worshippers of the founding fathers to agree with common sense...

[Seth]

As I said . . .

You disparage Sandford's decision, even though he clearly explains that the reason he's examining the issue of what is understood by the term "natural born citizen" is because there had been no previous rulings on that.

Well, not in American jurisprudence, but certainly there was in English jurisprudence, quite a long history of it in fact, as pointed out in the sources I cited.

But again, Sandford had neither the authority nor the judicial capacity to render such a judgment.

I do appreciate your willingness to try to support your position with sources. Sandford was educated in American law when both of your sources were more or less contemporary, and surely would have been familiar with them, as works of legal theory. On the other hand, Sandford's decision examines how the term is used in American legislation of his day, and clearly demonstrates that in that legislation, the issue of parentage is not a determining factor in regard to who qualifies as a "natural born citizen." While your sources are important theoretical works, they are not legislation, and they do not show how the term was actually used in the legislation of the day, which is precisely what Sandford's decision does.

Wait, you just said that Sanford's exegisis was made on the basis of "no previous rulings on that." That seems to be the basis of your reliance on his words as some sort of ruling precedent, so how could he be expounding on how the term "natural born citizen" "was actually used in the legislation of the day." If there was legislation of the day defining "natural born citizen" then he would have simply cited that statute as justification for his ruling. He didn't. What he did do was to point out that under the legislation of the day Julia Clarke was a "citizen" of the United States by virtue of her birth on American soil. And that is all he did.

Since we're looking at sources other than judicial decisions--

The legal definition of the term "naturalization" shows that in American law, it is not parentage but place of birth that determines who is a "natural born citizen" and who must be "naturalized" in order to become an American citizen. West's Encyclopedia of American Law, edition 2:

West's use of the term "natural born citizen" is not determinative either.

The process under federal law whereby a foreign-born person may be granted citizenship. In order to qualify for naturalization, an applicant must meet a number of statutory requirements, including those related to residency, literacy, and education, as well as an exhibition of "good moral character" and a demonstration of an attachment to constitutional principles upon which the United States is based.

We see that a foreign-born person is "naturalized" in the process of becoming a citizen of the United States. There is no mention of parentage having any relevance to citizenship status.

Correct.

A person who is born in the United States, on the other hand, is a "natural born citizen" regardless of the status of that person's parents.

Begging the question. The customary usages and understandings at the time the Constitution was written do not support your claim.

This position is further substantiated by the report from the Congressional Research Service on this topic, which completely agrees with Sandford's decision.

The Congressional Research Service is not a legislative or judicial body and it was not even in existence at the time the Constitution was written, and it's well known that it makes mistakes, and this is one of them.

In addition to historical and textual analysis, numerous holdings and references in federal (and state) cases for more than a century have clearly indicated that those born in the United States and subject to its jurisdiction (i.e., not born to foreign diplomats or occupying military forces), even to alien parents, are citizens “at birth” or “by birth,” and are “natural born,” as opposed to “naturalized,” U.S. citizens. There is no provision in the Constitution and no controlling American case law to support a contention that the citizenship of one’s parents governs the eligibility of a native born U.S. citizen to be President.

To refute this position, you will have to do more than cite books on legal theory. You'll need to show that the Congressional Research Service is incorrect. Bring a reference from controlling American case law which supports your contention regarding parentage being the determining factor in regards to who is or is not a "natural born citizen."

Like Sanford, the CRS conflates "at birth" (birthright citizenship attained by virtue of being born on US soil) and "by birth" to suggest (and I emphasize the word "suggest") that "natural born" means the same thing as the two previous descriptions. For one thing, the CRS is NOT an unbiased source, and for another it has no standing to set precedent or render decisions on the meaning of constitutional language.

As I keep telling you, there are THREE classes of American citizenship: "at/by birth," meaning born on US soil or on foreign soil to at least one American citizen parent; "naturalized", meaning of foreign extraction "made" a citizen by action of law; and "natural born," which is, as we see from the language and context of the Constitution itself, distinguishable from the other two categories. If the Founders had intended that any "citizen" could serve as President it would simply have said so. If they meant that any citizen other than a "naturalized" citizen could hold that office, they would have said that. But they didn't. They used a very specific term used nowhere else in the document that had a very specific contemporary meaning that they understood clearly. As I said, the fact that they used this specific term has meaning. It cannot be read to be synonymous with "citizen at birth" or by birth." To do so is to render the words "natural born" to be pointless surplusage, and as I told you that cannot be the case according to all of the canons of statutory interpretation that applied then and still apply now.

So I ask you, if "natural born citizen" must, as it must, by canon of statutory construction, mean something different from "citizen at/by birth by virtue of birth on American soil" or "citizen at/by birth born to at least one American citizen parent regardless of place of birth", which are well-known and understood classifications we both agree imbue the child with citizenship, then what does it mean? And why would the Founders use a completely different term than that which they used everywhere else in the Constitution and indeed in every federal statute since then?

There must be a reason why they used this term specifically in reference to the qualification to be President. So in your opinion what is that reason?

It's perfectly clear from reading the contemporary writings of the Founders that they had a very specific reason for using that term, which was to prevent someone who might have split allegiances due to one parent being a subject of foreign power from being President. This protection was put in place precisely because in their own time instances of exactly that sort of foreign influence occurred in England and other European countries, and they therefore resolved to place a check in the way of, hypothetically, the son of a foreign monarch married to an American citizen being influenced by his father to the detriment of the United States should he become President.

Hypothetically then, if Barack Obama was born in Hawaii to an American citizen mother, but his father was President of Kenya, he might feel obliged by reason of his father's interests to act in ways favorable to Kenyan interests over his obligation to attend only to American interests, in spite of the fact that he was born on US soil to an American mother. That's precisely what the Founders sought to avoid by requiring that BOTH parents of someone in the office of President of the United States be free of allegiance to a foreign power and have allegiance to the United States either by birth or by swearing an oath upon being naturalized to abjure all foreign powers and be loyal to the United States.

In Ted Cruz's case, his father was a Cuban citizen until 2002, which renders his loyalty to the United States suspect enough to prohibit his son from serving as President.

Is there evidence that Cruz's father is a Cuban Communist mole who might influence Cruz's actions as President? No, of course not, but that was not a risk that the Founders were willing to take under ANY circumstances, which is why they required that a president be born of two American citizens. It is an exception to the general concept of jus soli, or citizenship by place of birth, which is the predominant concept of citizenship in the US, and a single and exclusive resort to the much more common jus sanguinis , or citizenship by blood, seen in most of the rest of the world, including England circa 1774.

There is no requirement in statute or common law that the concept of citizenship must be the same in all cases, and it is not, as the express language of the constitution demonstrates. The Founders added a "by blood" requirement to the qualification to be president quite deliberately and intentionally, as their contemporaneous writings prove.

[Seth]

A good piece on this topic: "Ted Cruz: Is He or Isn’t He a Natural Born Citizen?" | History News Network

The author examines the issues, but neglects to really come down on one side or another, preferring instead a finger poke in the eye for "originalists."

Here is my “originalist” conjecture. “Right of blood” versus “right of place” was a non-issue for the people of those times—even for the ever-fastidious framers, who argued at great length about so much else.

This of course is utter historical nonsense.

The Founding Generation took no notice and didn’t really care; they just knew that no foreigner should be president.

Except that they did take notice and absolutely did really care, as indicated by their expressions of grave concern on exactly that point. It was not just excluding "foreigners" from the presidency that was their concern, it was excluding foreign influences by virtue of a "right of blood" relationship to a foreigner (in the time almost exclusively the father).

If forced to declare, they would probably say there had to be some connection by both place and blood, just to be safe.

Well, this ignoramus hasn't done his homework, or he's a Progressive who is just flat-out lying because the Founders declared exactly that in the constitution.

A French couple, while traveling, has a child on American soil? Not good enough.

Correct.

An American couple has a child in England, and the family remains there? We need our president to be more American than that, define it as you will.

And yet such a child would be eligible to be President. See how "jus soli" and "jus sanguinis" become intermixed here?

If the framers had more time, and if they deemed it as significant as we do right now, they might have figured something out, but they didn’t.

They had years, and they did figure it out, it's just that this dunce isn't able or willing to do so.

Instead, by their failure to act, they left it to Congress to conjure a definition.

No, they didn't, and therein lies the whole point. He just thinks they did. But the constitution doesn't define "citizen" either, which makes this dunce's reasoning somewhat less than compelling. The terms "citizen", "subject", "alien", "foreigner", "naturalization" and other related terms are not defined in the constitution either, but their meanings at the time were well known and well codified in both statutes and the common law of England, from which America took much of it's basis for legal reasoning and decision making. While English common law does not act as rule of law in the US, it does inform the understandings of the Founders and what they meant, what their original intent was.

But this is only a conjecture, and we can’t build a case on that. Try as we might, originalism in any form fails us here. But if we use the originalist standard only at our ease and pleasure, can it count as a “standard”?

Again, gross ignorance of history and legal reasoning is demonstrated here.

How ironic that Ted Cruz, who has promised to appoint only originalist justices, has become the poster-child—or more precisely, poster-infant—for originalism’s deficiency.

Except "originalism" isn't deficient at all, its merely this jackass's knowledge and understanding that's deficient.

Ted Cruz may well (and justly should be) hoist on the petard of original intent, but that doesn't change the facts of history that require he take that ride. It's his own fault for trying to weasel around the constitution for his own aggrandizement. If he were an honest person he would retire from the race and admit he's not eligible. But by trying to shoehorn his way to the presidency just like Obama did he shows himself to be no better than Obama.

[Seth]

Or we could all just agree that in this age of global mass communication, where and under what circumstances someone is born should play no role on whether she can become President.

Fuck that!

Someone burn and raised in the US by US parents can still become influenced by foreign ideologies or governments. So that is not a good criteria to prevent moles.

It's what we've got and it's better than nothing even if it's not 100 percent effective, as we see in the fact that a Marxist mole currently occupies the Oval Office. Had this matter been adjudicated by the Supreme Court when it was first raised, the issue would have been settled and Obama would never have been President once, much less twice.

It was the Supreme Courts cowardice that leaves the question open to debate, and that needs to stop, and stop right fucking now. If the Supreme Court rules that Cruz is eligible, then so was Obama and the question will then be left to the People to decide if they want to ratify an amendment to the constitution to change that interpretation, which is as it should be.

[L'Emmerdeur]

As I said . . .

You disparage Sandford's decision, even though he clearly explains that the reason he's examining the issue of what is understood by the term "natural born citizen" is because there had been no previous rulings on that.

Well, not in American jurisprudence, but certainly there was in English jurisprudence, quite a long history of it in fact, as pointed out in the sources I cited.

But again, Sandford had neither the authority nor the judicial capacity to render such a judgment.

Since this was not a case involving qualifications for president, his remarks on that certainly do not set a precedent. What Sandford's decision does is show the thoughts and supporting evidence in regard to the term "natural born citizen" used by a respected American jurist during a time not very far removed from that of the writing of the Constitution.

I do appreciate your willingness to try to support your position with sources. Sandford was educated in American law when both of your sources were more or less contemporary, and surely would have been familiar with them, as works of legal theory. On the other hand, Sandford's decision examines how the term is used in American legislation of his day, and clearly demonstrates that in that legislation, the issue of parentage is not a determining factor in regard to who qualifies as a "natural born citizen." While your sources are important theoretical works, they are not legislation, and they do not show how the term was actually used in the legislation of the day, which is precisely what Sandford's decision does.

Wait, you just said that Sanford's exegisis was made on the basis of "no previous rulings on that." That seems to be the basis of your reliance on his words as some sort of ruling precedent, so how could he be expounding on how the term "natural born citizen" "was actually used in the legislation of the day."

You are certainly aware that "rulings" in this context means decisions made in American courts, while "legislation" means laws written and passed by various legislatures. As I stated, Sandford's decision examines how the term is used in American legislation of his day, absent previous decisions ("rulings") made by any American judge in regard to the term. I have not stated that Sandford's decision is "some sort of ruling precedent" in regard to qualifications for the office of president. Rather, I cite his decision to show the thinking of a respected early American jurist whose knowledge of the laws of his time as well as his knowledge of the general understanding of those laws by the contemporary legal community can inform us as to what American jurisprudence of the period understood by the term "natural born citizen."

If there was legislation of the day defining "natural born citizen" then he would have simply cited that statute as justification for his ruling. He didn't. What he did do was to point out that under the legislation of the day Julia Clarke was a "citizen" of the United States by virtue of her birth on American soil. And that is all he did.

Sandford states that his duty is not to establish the rule of law but to ascertain a rule which has been in force from the era of the Federal Constitution, so he examines the usage in legislation of the term "natural born citizen" to show what is meant by that term. As stated above, in doing so Sandford provides a window into American legal thought of his time.

West's use of the term "natural born citizen" is not determinative either.

The quotation from West's Encyclopedia of American Law does not use that term. What it does is show that people who are "foreign-born" (as opposed to native-born) must go through a process known as "naturalization" in order to become citizens of the United States. On linguistic grounds it seems a legitimate inference therefore to say that in regard to citizenship, "native-born" equates to "natural born," else a different term for the process would be used, thus:

A person who is born in the United States, on the other hand, is a "natural born citizen" regardless of the status of that person's parents.

Begging the question. The customary usages and understandings at the time the Constitution was written do not support your claim.

That has not been definitively proven (otherwise there would be no basis for discussion) and the historical analysis in the CRS report contradicts your assertion.

The Congressional Research Service is not a legislative or judicial body and it was not even in existence at the time the Constitution was written, and it's well known that it makes mistakes, and this is one of them.

Your assertion that the analysis is mistaken carries no weight whatsoever. This is another instance where some guy on the internet puts himself forward as an authority on a topic, qualified to make statements about the validity of the work of genuine scholars.

There is no provision in the Constitution and no controlling American case law to support a contention that the citizenship of one’s parents governs the eligibility of a native born U.S. citizen to be President.

To refute this position, you will have to do more than cite books on legal theory. You'll need to show that the Congressional Research Service is incorrect. Bring a reference from controlling American case law which supports your contention regarding parentage being the determining factor in regards to who is or is not a "natural born citizen."

[Wall of text containing no reference from controlling American case law.]

Okay then.

[pErvinalia]

Not all under 30s. There is a surprisingly large Libertarian contingent in my kids generation(s). Has a lot to do with legalizing dope, but also with taxation.

Another decade will do, by then I'll either be worm food or living large somewhere in Latin America or the Caribbean. Might even go back to Africa. I'll certainly have me, the missus and our money out of the country before Bernie or a Bernie clone comes a'knockin. I'd like at least four years of a GOP Prez and Congress so real estate prices rise to the point it makes sense to sell up and GTFO Dodge.

What about your kids and grandkids? Don't you care about them? If none of us had kids, then I could get the argument for just acting selfishly in the short term. But we've got kids. I actually feel guilty as fuck that I brought them into this world. At least yours were born before we had a proper idea of how much we'd fucked the world up.

[laklak]

No grandkids, with any luck there won't be any, for exactly the reason you feel guilty. As for the kids, they'll need to move down to Panama or wherever with us if they want what we don't spend. There's no hope for us ground apes, between climate change, crazed fundamentalists with nukes, increasing anti-intellectualism, ocean acidification, exploding populations, fuck man take your pick, we're burnt toast. Best thing we can do on an individual basis is find a nice warm spot in the tropics and enjoy what time we have left. If for some reason we manage to pull our heads out of our collective ass in time to prevent complete extinction that's great, if not we'll go out with a cold beer in one hand and a spliff in the other.

[pErvinalia]

Change needs people willing to put their lifestyles on the line.

[pErvinalia]

I think you should be able to see this: https://www.facebook.com/permalink.php? ... 6535794459

You can opine about Sanders all you like, but he's spot on here. And the reality is, he's not going to be some socialist overlord. Him and Corbyn calling themselves socialists is a misuse of the term. They are social democrats. You will still be operating under capitalism, just a more fair and economically rational system like that of the Scandinavians (and Australians, to some extent). Yes, you might fluke the right part of the property bubble like you will if your luck holds out under the neoliberals, but long term your economy will be more stable and prosperous.

Won't somebody think of the kids!!1

[laklak]

They're better men than I am, Gunga Din. I'm too old and comfortable to give it all up for less than a roulette chance of success. I put my time in on the barricades back in the day, didn't accomplish shit except put me years behind on the corporate ladder and ruin any chance at public office. Didn't matter where I worked, here, Europe, wherever, it was all the same. Greedy bastards grubbing for money and fucking over anyone who got in their way. Now it's time to relax and let the youngsters have a go.

[pErvinalia]

I meant to add, he will only be one branch of gov. You'll still have a corporatist congress and senate. What he would achieve if he got elected would be so far from socialism, and still a LONG way from a true social democracy the likes of which Scandinavia has traditionally had, that it's little more than paranoid delusion to be scared of him.

[pErvinalia]

They're better men than I am, Gunga Din. I'm too old and comfortable to give it all up for less than a roulette chance of success. I put my time in on the barricades back in the day, didn't accomplish shit except put me years behind on the corporate ladder and ruin any chance at public office. Didn't matter where I worked, here, Europe, wherever, it was all the same. Greedy bastards grubbing for money and fucking over anyone who got in their way. Now it's time to relax and let the youngsters have a go.

that's probably a fair reaction, particularly given you aren't likely to have grandkids to feel guilty about. I've still got a little fight in me (not much though), so if some serious civil disobedience could kick off soon, i'd be in. I guess if I still had money I might be more inclined to nick off to somewhere relaxing and let the fucks swim in their idiocy. To be honest, I vacillate between caring, and bowing out letting the majority of fucks get what they have coming. But it's the damn kids that keep me from giving up. It was a real fuckup to bring them into this world.