With the Canadian-born Ted Cruz running for president, once again the question of what the obscure term in the US Constitution, “natural born citizen,” means enters the national debate. Can only persons born in the country be president, or does it mean someone who is a citizen from their birth?
I think that some writers on the natural born citizenship clause ignore the elephant in the room: the significance of the fact that the Constitution not define “natural born citizen.” Here is one of many citations I could offer, this from the Supreme Court’s decision in Minor v. Happersett:
The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere …
The Minor Court went on to look for a definition in the English Common Law, “the nomenclature of which the framers were familiar.” Was it really the intent of the Framers to leave the question of birthright citizenship to the Common Law, indicating such by a mere hint left in a clause on a completely different subject? If it was then they did a rather poor job of things, forcing later courts to attempt to tease out what they were thinking from text not on topic, leaving room for the infamous Dred Scott decision that contributed to the US Civil War, requiring the extreme remedy of a constitutional amendment to fix and after over 200 years, leaving some uncertain as to who is eligible to be come president. Is it not reasonable that if the Framers intended a definition of birthright citizenship to be in the Constitution, then they would have said something like: “The Citizens of the United States shall be….” I do not think such was their intent, and neither did James Madison, and in support of that idea I cite the Smith controversy.
Congressman Smith was elected US House of Representatives from South Carolina in the first federal election under the new Constitution in 1788, and his eligibility was challenged based on the claim that he had not been a citizen of the United States the requisite 7 years (Smith, born in Charleston, was overseas during the Revolutionary War). When deciding the Smith question, Congress found that there was an ambiguity as to when Smith became a citizen. Here’s what Madison said speaking before the House in 1789:
It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us; but since this has not been the case, let us settle some general principle before we proceed …
Following, Madison states the general principle: “it is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage….” What Madison tells us is that citizenship in the United States was not defined in the Constitution, was not uniform across all the States, and that sometimes one rule applied, and sometimes another. Indeed, Madison faced the same problem that the Minor Court did: citizenship is not defined in the Constitution. When faced with the problem of defining birthright citizenship, the Supreme Court has repeatedly cited the Constitution’s presidential eligibility clause and resorted to the English Common Law. The principle author of the Constitution (an “originalist” if ever there were one!) did not, but rather started with state law, and then resorted to general principles broader than the Common Law (under the English Common Law, parentage is not a criterion of allegiance).
If indeed citizenship at the time of the founding was defined by state law—sometimes one way and sometimes another1–then it seems to me to be a mistake to assume that the Framers intended any hard and fast definition of “natural born citizen” to apply to presidential eligibility.
Just as Madison did not resort to the English Common Law to solve the Smith eligibility question, I do not think we should resort to it to solve the presidential eligibility question. I keep coming back to the point that the only dictionary definition of “natural born” in the Oxford English Dictionary is:
Having a specified position or character by birth; used esp. with subject.
It seems to me that the Framers intended, as the historian George Bancroft surmises2, that presidential eligibility be limited to someone who had never been a foreigner3, following the progression of 7 years citizenship for the House, 9 years for the Senate, and one’s entire life for president. The plain text of the Constitution says that the Framers originally intended that the president must have the position or character of citizen by birth, however defined by the states. The criteria of who had that position or character was left to the states, some of which granted birthright citizenship to the children of their citizens born outside the country.
Following the passage of the 14th Amendment, citizenship in the United States is defined by the Amendment and federal statutes. It is a reasonable transition, not violating original intent, that these current statues govern who is a citizen from birth, and hence a natural-born citizen.
1 Virginia, for example, granted citizenship to persons born in the Commonwealth, and also to the children of its citizens "wheresoever born."
LAWS OF VIRGINIA, MAY 1779−−3d OF COMMONWEALTH. CHAP. LV.
An act declaring who shall be deemed citizens of this commonwealth.
BE it enacted by the General Assembly, That all white persons born within the territory of this commonwealth, and all who have resided therein two years next before the passing of this act; and all who shall hereafter migrate into the same, other than alien enemies, and shall before any court of record, give satisfactory proof by their own oath or affirmation that they intend to reside therein; and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father if living, or otherwise whose mother was a citizen at the time of their birth, or who migrate hither, their father if living, or otherwise their mother, becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth. …
2Bancroft wrote in his History of the Formation of the Constitution of the United States (1884) (Volume 1 Page 346):
One question on the qualifications of the president was among the last to be decided. On the twenty-second of August the committee of detail, fixing the requisite age of the president at thirty-five, on their own motion and for the first time required that the president should be a citizen of the United States, and should have been an inhabitant of them for twenty-one years. The idea then arose that no number of years could properly prepare a foreigner for the office of president; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, the committee of states who were charged with all unfinished business proposed, on the fourth of September, that “no person except a natural-born citizen, or a citizen of the United States at the of the adoption of this constitution, should be eligible to the office of president,” and for the foreign-born proposed a reduction of the requisite years of residence to fourteen. On the seventh of September, the modification, with the restriction as to the age of the president, was unanimously adopted.
The underlined portion was cited in Justice Fuller’s dissent in US v. Wong. Bancroft personally interviewed James Madison and had access to his journals, notes and letters.
3This is in line with what future Chief Justice John Jay wrote in his famous letter to Washington that may have introduced the term “natural born citizen” into the deliberations on the Constitution. The rationale Jay gave was to check the admission of “Foreigners” into the administration.
When thinking about how the Supreme Court appealed to the English Common Law to solve the citizenship question (while a real Framer of the Constitution did not), I was reminded of a scene from my favorite movie, “The Hunt for Red October.” This is the scene where the Soviet sub is first picked up on SONAR:
Jonesy: I heard something in the background real faint. After all those subs took off, I caught it again and got it on tape. I washed it through the computer and was able to isolate this sound. When I asked the computer to identify it, what I got was magma displacement. You see, sir, the SAPS software was originally written to look for seismic events. I think when it gets confused, it kind of runs home to Mama.”
I think that perhaps the Supreme Court, when faced with this anomaly ran home to the English Common Law, which is how they were originally trained.
Of neither here nor there- I was struck by the though that the writers of the Constitution just assumed everyone knew what they meant by NBC.
And apparently we all did for about 200 years.
Here is an example of an old usage:
1598 W. Phillp tr. Linschoten (Hakl.) I.184 The children of the Mestiços are of colour and fashion like the naturall borne Countrimen.
@Doc [I was reminded of a scene from my favorite movie, “The Hunt for Red October.” ]
You know I trained a Jumper for John McTiernan real nice Palamino. He was the Producer of Hunt For Red October.
https://en.m.wikipedia.org/wiki/John_McTiernan
[The Minor Court went on to look for a definition in the English Common Law]
When ever the closeness of English Law and American Law are nesseled together the axiom of similarities between the Gorilla and the Horse come to mind.
Yes it’s True. They are both animals. However in the context and contrast of [ natural born Subject] v. [natural born Citizen] I cannot imagine not noticing the differences much more than the similarities.
The poposterous similarities used are seen near infirm with a very simple question:
Did natural born Subjects in their state understood by the esteemed King of the Crown 👑 ever assume the passage guaranteed to them, to the Thrown, by Election, as part of the “rights and privileges”?
The answer is not only NO, but HELL NO!
Right to own property and claim on defense, as well as pay yr taxes was more to the flexibility of [natural born Subject] than someday becoming King, and to say otherwise is infirm.
Thus, on the subject of POTUS v. KING to similarize [natural born Subject] and [ natural born Citizen] is to recognise the similarities of the Gorilla and the Horse. Why do it when the differences so far out way similarities?
Twas Blackstone that railed upon Anchor Babies when he said, ” Where no Protection can be Claimed, no Allegiance can be Due”
Twas also Blackstone that said in affect, “The place of Birth is Singular” and “No two places of allegiances can be had, for you can’t serve two masters at Once”
https://en.m.wikipedia.org/wiki/William_Blackstone
There is no doubt Blackstone influenced common law in English Speaking countries.
But On the subject of [ natural born Citizen] it seems Emerich de Vattel in 1758. In book one chapter 19,
§ 212. [Of the citizens and natives] hits The Trust of POTUS writing [The natives, or natural-born citizens, are those born in the country, of parents who are citizens. ]
This seems much more cognitive of the differences of KING and POTUS in context.
It is by Statute -Title 8 Aliens and Citizens at Birth §1401 a-h that those naturalized favored foreigners find [Citizen] status as is properly cited.
The confirmation of [natural born Citizen] in Title 8 ACT is withheld, and [natural born Citizen] was stripped in 1795 from 1790 in what has to be acknowledged as a hiccup rather than Original Intent.
The 1803 recognition in Congress of [ natural born Citizen] is touted a [Happy Barrier] against foreign influence.
Now, what happy barrier is consistent with [foreign influence] if foreigners crossing the border the moment of Birth are allowed qualified for the Office of President (Rubio), as also a Foreign Ambassador’s children presuming allegiance against their father and mother born in a foreign state like The United States of America or Canada (Cruz) ?
Of course American Law has adopted in naturalization statutes these naturalized favored foreigners at Birth accept the Office of President. This is based on a matter of Time, for their children born here are able and Qualified for that Office.
The Qualification of natural born Citizen is about TIME and the preservation of a unique American Culture that neutralizes things like.. Oh say Radical Jihadist into a more acceptable tolerance of a multiple religions state as an example.
Madison did recognise the influence of both Place and Parents and Smith’s example of not filling 7 yrs residency is poor fodder in the 2 Generations of Time for the Office of President in the Term born in the U.S. to Citizen Parents for [natural born Citizen]
This is why to write: @Doc [It is a reasonable transition, not violating original intent, that these current statues govern who is a citizen from birth, and hence a natural-born citizen.] is a conundrum.
Statutes are naturalization strategies for taxes, land, and Civil Rights for Citizens, not a Determination of lowering the Time Period required for [natural born Citizen][ship] status required for the a office of President and VP.
Yes., I am an American Racist which is to say a racist for the plurality of races and cultures poured together , the result of two generations exhibiting a purity worthy of distinguishment and the qualification of the Office of President.
Born in the U.S. to Citizen Parents
That’s American
Actually Chief Justice Fuller cited Bancroft’s slightly different version at p. 192 of Volume 2 of his “History of the Formation of the Constitution.”
https://archive.org/stream/historyofformati02banc#page/192/mode/2up
The cited text is actually on p. 193. Here’s that version:
“One question on the qualifications of the president was among the last to be decided. On the 22nd of August the committee of detail, fixing the requisite age of the president at thirty-five, on their own motion and for the first time required only that the president should be a citizen of the United States, and should have been an inhabitant of them for twenty-one years. On the fourth of September the committee of states who were charged with all unfinished business limited the years of residence to fourteen. It was then objected that no number of years could properly prepare a foreigner for that place; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, on the 7th of September it was unanimously settled that foreign-born residents of fourteen years who should be citizens at the time of the formation of the constitution are eligible to the office of president.”
The passage you quoted is from Volume 6 of Bancroft’s “History of the United States of America, from the Discovery of the Continent,” 1884 ed., at 346.
https://books.google.com/books?id=b7oTAAAAYAAJ&printsec=frontcover#v=onepage&q=among%20the%20last%20to%20be%20decided&f=false
https://archive.org/stream/historyunitedst19bancgoog#page/n378/mode/2up
The preface to the history of the Constitution reveals an interesting fact– Bancroft’s research included several days spent interviewing James Madison. Bancroft said,
“At my departure he assured me that he had carried his confidence with me further than he had done with anyone.”
Oh lordy. I don’t know what version of Wong Kim Ark I saw that had Fuller citing to page 192. I just checked at the LII and they’ve got him citing to 193.
@Dave B re:
[foreign-born residents of fourteen years who should be citizens at the time of the formation of the constitution are eligible to the office of president.”]
Wow! That is an EXCELLENT contribution to the 14 year resident requirement being much more to do with those [Citizens] at the Time of the Adoption of the Constitution, then a Determination of time required by a [ natural born Citizen] ie. born in the U.S. to Citizen Parents.
Contrasted also with the 7 years a Citizen and 9 years a Citizen requirements for Representatives and Senators.
Thank you!
Out of Judy’s wholly incomprehensible word salad, that’s the only part he got right.
Just aiming to please you Bob.. Lol
https://twitter.com/CodyRobertJudy/status/687018444319936513
Fitting? #Obama s last #SOTU that American #NavyShips are in #IRAN’S custody and #Hostage Good Grief not a NBCTZN #SCOTUS @realDonaldTrump
BREAKING REPORT : BIRTHER BIRTHER U.S. SUPREME COURT BIRTHER PIE-IN-THE-SKY – http://codyjudy.blogspot.com/2016/01/breaking-report-birther-birther-us.html?m=1
Serving American’s now through Civil Appeal verses waiting for Election Civil War. What makes more sense to You? cont..,
Judy literally tweeted, “IAM AMERICAN RACIST”.
And he wonders why no one takes him seriously.
At least Nancy Owens can write clear, understandable sentences.
Ah, that is an important fact that I did not know.
That’s one to conjure with, ain’t it?
Washington Post op-ed on natural born citizenship by Mary Brigid McManamon, constitutional law professor at Widener University’s Delaware Law School.
https://www.washingtonpost.com/opinions/ted-cruz-is-not-eligible-to-be-president/2016/01/12/1484a7d0-b7af-11e5-99f3-184bc379b12d_story.html
I hemmed and hawed about which entry to put this, but I think it has enough relevance to this latest that it might work.
Huffington Post Editorial by Richard North Patterson:
Dog Whistles and Hypocrisy: The GOP’s Selective Birthers
Read the article for the (un-)surprising conclusion.
(Richard North Patterson is the New York Times best-selling author of 22 novels, a former chairman of Common Cause, and a member of the Council On Foreign Relations.)
Mr. Judy left out that in addition to being a racist that he is a convicted terrorist who threatened to kill several thousand churchgoers.
In Volume 18 of The Supreme Court Reporter (p. 482) it cites to page 192.
Also, too, Findlaw.
https://www.google.com/?gws_rd=ssl#q=%222+Bancroft+Hist.+U.S.+Const.+192%22
Manchester v Boston Mass Supr Court, 1819
Any know where’s access to the above. The excerpt I have says both parents must be citizens of a state to pass citizenship to child born abroad.
This is after the Constitution.
You guys are getting close to the real meaning of naturalization and natural born. Your ideology blinds you from the truth.
A natural is a native, naturalization is their kindred. I’ve amassed treasure trove this subject from various sources.
You want to block me to protect your boy. The Founders wanted a country filled with citizens with their own natural kind.
Pinckney said..they have a guarantee in the Constitution the slaves can’t be emancipated, is it Section 8? Uniform Naturalization, meaning Congress can’t UnNaturalize the Country..
Heterogeneous societies never survive. All the original citizens lost their liberties. Athens, Rome..do you really think..the Founders did not know what Caracalla did in Rome. Look at his parents and his citizenship decree.
Well, that makes me feel a LITTLE better.
Now the really funny thing about that particular search is that one of the mere handful of results is my own comment on this site from almost exactly three years ago where I was confused about the same damn thing.
But when you look at this:
https://books.google.com/books?id=eoS0658bpS4C&pg=PA346&lpg=PA346&dq=bancroft+%22The+idea+then+arose+that+no+number+of+years+%22&source=bl&ots=Y3u_Tg6g4t&sig=rmoyPn4m2iSM9FU-udqgYu8Q32Y&hl=en&sa=X&ei=M_tZUL2GG4-C9gTh-IDYCQ&ved=0CDIQ6AEwAQ#v=onepage&q=bancroft%20%22The%20idea%20then%20arose%20that%20no%20number%20of%20years%20%22&f=false
and then this:
https://books.google.com/books?id=b7oTAAAAYAAJ&printsec=frontcover#v=onepage&q=among%20the%20last%20to%20be%20decided&f=false
it does tend to be a bit confusing. They’re the same book with different titles. And neither one is Vol. 1 of Bancroft’s “History of the Formation of the Constitution”:
https://archive.org/stream/historyofformati01banc#page/n5/mode/2up
https://archive.org/stream/historyofformati01bancuoft#page/n7/mode/2up
That’s not the purpose of this blog. A rational and civil examination of facts is what I am trying to protect.
That’s one of those cases the Sov Cit folks cite, but I don’t know where you could get it online. It is contained in “Massachusetts Reports” Volume 16. Find a library with a WestLaw subscription or something.
Personally, I resent this.
As a Frenchman, I could care less about who sits in the White House, except of course that the US Presidency affects the rest of the planet, but in that respect alone, I’d be inclined to be more anti-Obama than pro-Obama.
I am otherwise as unbiased as can be on this issue, having no dog in your fight, as it were.
What i can say with certainty is that the notion that it took two citizen parents to make a citizen, at least is Europe is rubbish.
Going back to the Antique world (Greece, Rome) and up to the middle of the 19th century, only the father mattered. The status of the mother was utterly irrelevant, to the extant that in the absence of a father, it was usually the mother’s brother or father that acted in loco parentis.
Mothers start getting their own rights from the 1860s on (dates vary according to countries) but the transmission of citzenship always remain an EITHER system, not BOTH.
In modern-day, of course, fathers and mothers have equal rights under the law.
Frankly, I do not know of any circumstances, including in Ancient Rome (which you re so fond of quoting), where the status of the mother mattered.
One of the BIGGEST problems has been the Main Stream Media selective political biased reporting here fueling an angry minority.
Does anyone here knowing that McCain and the RNC was halled into Federal Court in 2008 by Pres Candidate CRJ, not see the Editorial at Huffington Post a deliberate attempt to keep their Readership Ignorant? The Race War Fueled? The Constitution’s Qualifications for President hostage to a Minority War?
It’s just as bad spreading untruths like this. Totally irresponsible to the Record of Truth
http://codyjudy.blogspot.com/2016/01/breaking-report-off-beaten-path-to.html?m=1
Spreading rumors and Falses aggrandized in delusions only cast a Red Flag on the agenda of those casting their credits and trust in the Group.
If anything the Political Reality the Group is trying to establish is seen as uncertain embellishments.
I would discourage further embellishments as attacks upon your own credibility. Of course in debate you get 30 Seconds for a personal attack. The fact in here under my Real Identity with a few others should attest to a Frame Job which is also covered-up by the Media. .given a particular agenda.
Rather then cast insults, I hope to encourage gratitude and appreciation for our Freedoms and Liberties of which I’m immensely grateful for.
@Bob One of the absolute Treasures I’ve found in Life I’ll share, . .with you. The idea 💡 of LOOKING for Truth rather than Looking for Falses. The reward for the search also yielding the fruit you eat.
Mind you, I’ve eaten a lot of grief from people looking for Falses, but I still can attest the yield of looking for truth in my heart ❤ a delicious fruit resting my Soul in happiness and joy every day. Thank God.
Perhaps it is for you also? I do hope so my friend. Word-Salad may be appreciated by those on diets. I enjoy a good salad.
The word you’re looking for is “falsehoods.”
The attorney for the RNC and McCain filed a single motion in the entire case and that was to oppose reopening the case the court had already dismissed. The results were predictable.
Not exactly a front page news item.
Frivolous lawsuits are filed all the time; they are not newsworthy. A single nutjob (such as Judy) filing a lawsuit isn’t newsworthy, whereas a group of nutjobs (i.e., birthers) repeatedly filing variants on the same losing lawsuit becomes newsworthy (but not for the reasons they think).
Oh, the irony.
Except Judy deals only in lies. Judy tells lies about himself, President Obama, anyone it would seem. Judy ignores truth (such as President Obama is a natural born citizen because he was born in the United States) and instead peddles falsehoods.
Actual salad is healthy. Word salad is garbage, and indicative of an unhealthy mind.
Gollum is that you?
The correct case caption is The Inhabitants of Manchester v. The Inhabitants of Boston (Massachusetts Supreme Judicial Court). It doesn’t say what you have been led to believe.
David Burges was a British subject, born in the British colony of Connecticut in 1759, who moved to Nova Scotia in 1761, where he remained during the American Revolution.
Amaza Burges, the son of David, was born in Nova Scotia in 1780.
In 1797 David and Amaza moved from Nova Scotia to Manchester, CT. Neither of them ever naturalized as U.S. citizens.
In 1804 Amaza married Jane Burges in Boston (Jane was born in Boston in 1784). Amaza and Jane moved to Manchester in 1805.
Amaza died in Manchester in 1816, owning no real estate.
David Burges purchased real estate in Manchester in 1802 and he also died in 1816.
Jane made a claim for a derivative settlement of David’s property in Connecticut, through her marriage to Amaza. It was ruled that David was never lawfully settled in Connecticut after he moved there in 1797 because he was never a U.S. citizen. Because David was never a U.S. citizen, Amaza was never a U.S. citizen.
The decision does not mention the citizenship of Amaza’s mother. Nowhere does the decision say that a child born abroad must have two citizen parents to be a U.S. citizen at birth. In fact, the mother’s citizenship was irrelevant in 1819.
You can find the case at this link. Scroll down to page 230.
https://books.google.com/books?id=fRAQAAAAYAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false
You’re welcome.
I found it online. Unsurprisingly, it doesn’t say what Obliged Friend believes it says. Scroll down to page 230.
https://books.google.com/books?id=fRAQAAAAYAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false
Could someone explain the relationship between federal statute and the Constitution in regards to natural-born citizenship?
For example, I’m confused about why legal scholars offer interpretations of the natural-born clause in the Constitution without referencing
8 US Code 1401, Nationals and Citizens of the United States at Birth.
https://www.law.cornell.edu/uscode/text/8/1401
Do not the stipulations described in this statute answer the question of who is a natural-born citizen?
This article has been updated with some minor editorial changes, and a citation to the 1789 Virginia law granting citizenship to foreign-born infants has been included.
The ambiguity arises because there is not a consensus on the question of whether “natural born citizen” means “citizen at birth” or whether it means someone who would be a natural born subject under English Common Law. Or some would say that whoever was a citizen at birth in 1789 is the only ones who could be a citizen at birth today, suggesting that the 1790 Act was unconstitutional, or inapplicable to presidential eligibility. The problem with that latter is that some Americans born abroad could be born citizens in 1789.
1779?
The Virginia 1779 law was drafted by Thomas Jefferson.
“Early in the session of May 79. I prepared, and obtained leave to bring in a bill declaring who should be deemed citizens, asserting the natural right of expatriation, and prescribing the mode of exercising it. This, when I withdrew from the house on the 1st of June following, I left in the hands of George Mason and it was passed on the 26th of that month” Autobiography of Thomas Jefferson
I understand the lack of consensus regarding meaning, but don’t federal statutes settle the matter in terms of children born abroad to citizen parents? If not, then why not?
Thanks because I couldn’t find it on WestLaw.
There is no federal statute currently that uses the words “natural born citizen.” Federal statutes talk about citizens at birth, but if that is not what “natural born citizen” means, then the federal statute would not be applicable (presuming that a statute could alter the meaning of a word in the Constitution in the first place.”
This article argues that the original intent of the Constitution was that NBC did mean citizen at birth, and that at the time, state law governed who that was.
How is David Burges’ situation different from William L. Smith’s?
Smith was born in South Carolina in 1758, was sent sent to England in 1770, returned to the U.S. in 1783, was considered a citizen of the U. S. by birthright.
The difference is that Smith came back to America at the age of 24 or 25, immediately after the war ended.
Burges waited until 14 years after the war ended, when he was 38, to return to Connecticut. The court made a point of the fact that he voluntarily continued to be a British subject from 1783 to 1797.
The decision references two cases for precedent: Kilham v. Ward & Al., and Gardner v. Same. “He [Burges] did not elect within a reasonable time to return, and claim his right as a citizen. The principle settled in the two cases last referred to is, that those persons, who left this territory, and voluntarily remained in other parts of the king’s dominions at the treaty of peace [the Treaty of Paris, 1783], were his subjects.”
Of course, Manchester v. Boston was a state court case, and apparently was never appealed to a Federal court.
Make sense.
Yale Law Professor Jack Balkin believes that Cruz is eligible, but concedes that that “it’s far from an easy question.”
He agrees with many of us that the way to get this adjudicated by a court is for a state to deny Cruz a spot on the ballot on the basis that he is not eligible. That would give Cruz standing to file a lawsuit and get to the merits. As for Trump’s suggestion that Cruz file a declaratory action, Balkin says ” Cruz can’t just go to federal court for a declaratory injunction without some plausible claim that he’s in danger of government action being taken against him.”
http://balkin.blogspot.com/2016/01/can-federal-courts-decide-ted-cruzs.html
We know that when the Revolution started, a fair number of colonists who were born in the colonies moved to Canada or England and sat out the war. Those who fought and suffered during the Revolution understandably weren’t too keen about granting what they fought for to people who ran away and hid from the fighting.
If Burges had returned to Connecticut in 1783 he would have been declared a citizen because he was a child when he was taken to Nova Scotia. However, by voluntarily remaining in Nova Scotia long after he reached his majority, he effectively opted to remain a British subject.
I wonder if Obliged Friend is going to come back and acknowledge that the case says nothing about two citizen parents. Probably not.
To be strict, the state law you quoted would not make Sen. Cruz a citizen, because his father was living and not a US citizen. The same was, I believe, true of English statutes.
So, ironically, Cruz, the strict originalist, needs a little modern-day non-originalist gender equality to get his citizenship and his putative natural born citizen status.
Jack Chin weighs in again on Cruz’s eligibility:
http://prawfsblawg.blogs.com/prawfsblawg/2016/01/does-ted-cruzs-conditional-citizenship-affect-the-natural-born-citizen-analysi.html
My response to Jack Chin’s ‘yeah but’..
————-
So the 1970 law required she live in the US for 5 years between the ages of 14 and 28 in order to pass ‘unconditional’ citizenship to little Rafael?
OK. She was born in 1934; she would have been 28 in 1962; there is no evidence that she lived anywhere but the United States before 1964.
She lived in the United States for 14 years between the ages of 14 and 28.
What is the problem here?
———-
Nice catch. Of course he was referring to Cruz’s theoretical retention requirement that was rendered moot in 1978.
It also happened to be a requirement that the five years be “continuous”, with the caveat that there could also be a total of up to 12 months aggregate outside the US during a five year span didn’t “break” the physical presence requirement.
I don’t know who comes up with these things. There was the physical presence requirement for unwed mothers to pass on citizenship requiring one continuous year of physical presence in the US (before the birth of the child) to pass on citizenship. The odd thing about that rule was that someone could live on the border and visit Canada or Mexico every six months, and that would theoretically make someone ineligible to pass on citizenship, since the continuous period of one year was broken up. I’m not quite sure how the State Dept of INS would prove it though.
That wasn’t a requirement imposed on the parent in order to transmit US citizenship; it was a requirement imposed on the child in order to retain US citizenship.