The Illinois Board of Elections Got It Wrong: Ted Cruz Is Not a Natural Born Citizen
By Mario Apuzzo, Esq.
February 5, 2016
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
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 (8thed. 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.
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.
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