Part 1: Natural Born Citizen
Part 1I: Natural Born Citizen, Part II
Part II1: Third Time's the Charm, Naturally
Here is the text of a response I emailed to him:
A partial quote of what you wrote (to stand in for all of it) –
(J) Current statutory law makes only 1 distinction in citizenship types, and that regards those who are “citizens at birth” versus those who are naturalized(tm). And does not require of a child born abroad that both parents or the father be American citizens, only one parent.Does Congress -- or the supreme Court, for that matter -- have Constitutional authority to redefine the terms used in the Constitution? To put it another way, does Congress (or the supreme Court) have the legal authority to modify the Constitution on the fly?
I do trust that you will say, emphatically, “Of course not!” For, if you do not, there is no more the two of us can say to one another.
Now, the Constitution explicitly gives Congress the power to "establish an uniform Rule of Naturalization ... throughout the United States". The Constitution *also* explicitly declares that Congress has only those powers explicitly granted it in the document.
ERGO: Congress does not have the legal power to change the meaning either of "citizen" (this is why it required a Constitutional Amendment to grant the franchise to women) or of "natural born citizen".
Now, as these laws to which you appeal concerning the US citizenship of the children of aliens born in the US (in the case of Obama, Jindal, Rubio or Nikki Haley) or of citizens and non-citizens born outside the US (in the case of Cruz) are Acts of Congress, if they are indeed Constitutional, then that is so by right of Congress' power to "establish an uniform Rule of Naturalization ... throughout the United States". THAT IS, either: these are laws dealing with naturalization ... or else they are unConstitutional.
SO, either:
1) these Acts of Congress *are* Constitutional, in which case Ted Cruz is a naturalized US citizen, and thus Constitutionally unqualified to occupy the office of US president;
OR 2) these Acts of Congress are unConstitutional, in which case Ted Cruz is in no wise at all a US citizen.
9 comments:
Just to be clear, I'm not saying that these laws are unconstitutional.
What I'm saying is that IF these laws are indeed Constitutional, THEN what they are doing is automatically naturalizing certain classes of persons.
But, a naturalized US citizen is Constitutionally prohibited from being either president or vice-president.
I don't know that "uniform rule of naturalization" necessarily just includes naturalization, as opposed to the whole category of citizenship in general. Defining a citizen becomes particularly important, given that the Constitution never does so, and given that even the people who advocate your position cannot typically agree on what a "natural-born citizen" supposedly was during the 1700s.
"I don't know that "uniform rule of naturalization" necessarily just includes naturalization, as opposed to the whole category of citizenship in general."
This is why people despise lawyers.
" I don't know that "uniform rule of naturalization" necessarily just includes naturalization ..."
On top of my gut response (as witness above), what you *wrote* is pretty much the opposite of what you meant. So, please take this in the spirit of helpful advice in which it is mean:
We all need to be more careful -- more precise -- in what we write and say, because what we write and say both reflects and influences how we think. And this is even more so for someone in your line of work.
In the manner of a vicious cycle, sloppy writing both reflects and leads to sloppy thinking. Similarly, in the manner of a virtuous cycle, careful and precise writing both reflects and leads to careful and precise thinking.
I'm just watching this debate with passing interest, but it seems like you're saying that the Congress doesn't have a right to issue US birth certificates?
TM Lutas (the opposite of a sloppy thinker) I saw recently had this discussion with someone else on another website. I tried editing it a little, but some things specific to the person he was replying to are still in. Just mentally read around them. Anyway here were the two arguments he put forth that may be of interest.
there are three possibilities.
1. Ted Cruz is not a US citizen - Not eligible for President or Senate
2. Ted Cruz is a naturalized US citizen - Eligible for Senate but not President
3. Ted Cruz is a natural born US citizen - Eligible for Senate and President
Ted Cruz has no naturalization papers. The process he went through to go get a US birth certificate is only valid for US citizens born abroad who are natural born citizens. Option 2 is thus not on the table. If Cruz got his birth certificate in error, you don't shift to option 2. You shift to option 1 and the GOP is down a Senate seat and a whole lot of people who got the same process have to get a lawyer to check for legal liability if they're registered voters.
No Cruz birther ever wants to talk about what Ted Cruz is because actually running through the details makes it quickly clear that the idea is just nonsense.
Update: just checked before I hit send and the site's back up. Lot of tribalist stuff about how Cruz would have to depend on liberals to accept his eligibility. It's nonsense of course. Better than 90% of scholars accept his eligibility and every analysis to the contrary never touches the issue of how many foreign born US birth certificates were issued and how many other people would have their lives turned upside down if the procedure Cruz used was invalid.
So that's an interesting possibility. If his citizenship is in question, he's not just ineligible for president, he's ineligible for the senate (but then some others might be too). He then posted further explanation:
I know about naturalization because I have this piece of paper that confers US citizenship on me through the naturalization process. There was a law. I applied (or rather my parents did as I was 12 years old) and I signed a piece of paper and took an oath.
Ted Cruz has never signed a piece of paper naturalizing him according to him. According to him, he's never taken a naturalization oath. How did he get naturalized? If you can't explain it and there's no paper record of it happening and Cruz says it never happened, how can you take the (politically convenient) position that he's naturalized?
You have to assert that the US government, in a specific set of circumstances, has been handing out the wrong paperwork for decades and has been issuing wrongful legal guidance that their application for a US birth certificate was not an act of naturalization.
This is a huge deal and likely affects tens of thousands of people. But none of the Cruz birthers want to open that can of worms so they try to limit it as if Cruz was the only foreign birth of a US mother and permanent resident father. That's not even vaguely plausible.
So are you, Ilion, saying that thanks to Congress we may have a sizable chunk of illegal citizens? (that's... hilarious in its incompetency)
^I just realized I should have clarified above, I meant the hilarious irony was in regards to the incompetency of Congress, not present company (unless you are a member of Congress).
"Uniform rule of naturalization" would seem to include defining who does and does not need to naturalize in the first place.
Drew: ""Uniform rule of naturalization" would seem to include defining who does and does not need to naturalize in the first place."
That statement, at least, isn't contrary to the clear meaning of the words, and thus obviously contrary to reason. It's still lawyerly sophistry attempting to wiggle around the spirit of the law.
I had been thinking about writing an OP to contrast "the spirit of the law" with "the letter of the law" with respect to this very power conferred by the Constituton on Congress: "The Congress shall have Power To ... establish an uniform Rule of Naturalization ... throughout the United States".
Now, a sophistical lawyer might note that the letter of the law places no restrictions at all upon the Congress with respect to the power to "establish an uniform Rule of Naturalization ... throughout the United States". And lo and behold, that *is* the truth of the matter.
So, continues the reasoning of our hypothetical sophistical lawyer, as the letter of the law places no restrictions at all upon the Congress with respect to this power, therefore there *are* no restrictions upon the Congress with respect to the power to "establish an uniform Rule of Naturalization". And the unwary citizen ... or the partisan who likes where this is going ... may well accede to the (false) claim.
Then, having secured the agreement of the unwary citizen (and of the partisan who will put party above polity) to that (false) conclusion, our hypothetical sophistical lawyer uses that (false) conclusion as the premise to the (false) conclusion which was his goal all along -- as there *are* no restrictions upon the Congress with respect to the power to "establish an uniform Rule of Naturalization", therefore Congress may enact a law providing that all persons on Earth heretofore not citizens of the United States are henceforth naturalized citizens of the United States.
But, of course, the Congress may *not* enact such a law. Such a law is a violation of the spirit of the law of the Constitution ... and also a declaration of war against all other nation-states on the planet.
So --- Drew: ""Uniform rule of naturalization" would seem to include defining who does and does not need to naturalize in the first place."
If the Congress is claiming the power to define "who does and does not need to naturalize in the first place" with the implication that all persons who do not need to be naturalized are obviously citizens, then the Congress is claiming the power to define -- and to re-define -- what the term 'citizen' means.
But, Congress does not have the power to re-define what the term 'citizen' means.
The above hypothetically claimed power turns citizenship on its head, for it claims natural US citizenship to be dependant upon, or to be subordinate to, the Congress' power to extend US citizenship to persons who are not US citizens. But, the truth is, citizenship is primary, and naturalization is dependant upon, and subordinate to, citizenship.
Drew,
You're a good man ... but you're in a shitty profession. And so you need to be always on your guard to protect your honor against the pull towards dishonor that lawyering will always inflict upon its practitioners.
Lawyering is, and always has been, and always will be, mostly about getting around the law.
Now, if a particular law is unjust or immoral, one does understand the impulse to get around it, for that is generally easier than overturning it *and* gives relief to those being oppressed by that law right now.
But, most laws are not unjust or immoral -- for no polity that is fundamentally unjust or immoral can long endure.
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