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politics and politicians Title: Ted Cruz is Not Eligible to run for president: A Harvard Law professor close-reads the Constitution Ted Cruz is Not Eligible to run for president: A Harvard Law professor close-reads the Constitution The closer you study the Constitution, the weaker Ted Cruz's case squares with the actual meaning of "natural-born" Einer Elhauge
Topics: Ted Cruz, Elections 2016, Editor's Picks, Donald Trump, Natural-born citizen, Can Ted Cruz be president, Can Ted Cruz run for president, constitution, aol_on, Business News, Life News, News, Politics News (Credit: Reuters/Chris Keane)
The argument that Ted Cruz is eligible to run for president initially looked strong, then probable but uncertain. But closer examination shows it is surprisingly weak.
The constitutional text provides that a president, unlike other elected officials, must be a “natural born citizen.” This language could not mean anyone born a citizen or else the text would have simply stated “born citizen.” The word “natural” is a limiting qualifier that indicates only some persons who are born citizens qualify. Moreover, when the Constitution was enacted, the word “natural” meant something not created by statute, as with natural rights or natural law, which instead were part of the common law. At common law, “natural born” meant someone born within the sovereign territory with one narrow exception. The exception was for children of public officials serving abroad, which does not help Cruz because his parents were not serving the United States when he was born in Canada. The case of John McCain was entirely different because he was born in a U.S. territory (the Panama Canal Zone) and to U.S. parents who were serving the U.S. military. The argument for Cruz rests on some old statutes, namely English statutes enacted before the U.S. Constitution and U.S. statutes enacted just after. But neither turns out to be persuasive on closer examination. The English statutes extended natural-born status to persons born abroad whose father was any English subject, rather than only a public official. Some argue that the constitutional framers meant to refer to this statutory redefinition of the term “natural born.” But that position contradicts the ordinary meaning that the word “natural” indicates a non-statutory meaning. Moreover, Prof. Mary McManamon offers convincing evidence that the Framers meant the common law meaning. James Madison himself said in 1789 that the U.S. used the place of birth rather than parentage. In any event, Cruz’s father was not a U.S. citizen when he was born (again unlike McCain), so these English statutes do not help Cruz. The U.S. statute in 1790 provided that “children of citizens of the United States” that are born abroad “shall be considered as natural born Citizens.” This has been thought the strongest evidence for Cruz’s position since so many 1790 congressmen had participated in the Constitutional Convention. However, this statute did not say these children were natural-born citizens. It instead carefully said they “shall be considered as” natural-born citizens, suggesting that Congress thought they were not natural-born citizens but should be treated as such. Indeed, there would have been no need to pass the statute if they were already understood to be natural-born citizens. Further, when this Act was reconsidered in a few years, Madison himself pointed out that Congress only had constitutional authority to naturalize aliens, not U.S. citizens, and reported a bill that amended the statute to eliminate the words “natural born” and simply state that “the children of citizens of the United States” born abroad “shall be considered as citizens.” This indicates that Madison’s view was that children born abroad of U.S. citizens were naturally aliens, rather than natural born citizens, and thus could be naturalized by Congressional statute but should not be called “natural born.” Congress adopted this amendment in 1795. Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Comments (1-55) not displayed.
#56. To: ConservingFreedom (#54)
#57. To: Roscoe (#56) In what post and with exactly what words did I disagree that 32 U.S. (7 Pet.) 243 (1833) expressed the intent of the Founders and Framers? A government strong enough to impose your standards is strong enough to ban them. #58. To: ConservingFreedom (#55) The Court ruled in 1897, "Due process of law, as applied to judicial proceedings instituted for the taking of private property for public use means. therefore, such process as recognizes the right of the owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation." That ruling does not apply the Bill of Rights to the states. It applies the 14th Amendment's EXPLICIT due process requirement on the states to the states.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Are you really that dim?
#59. To: ConservingFreedom (#57) Did you already forget your lame non sequitur, "That was before the Fourteenth Amendment..."?
#60. To: Roscoe (#59) non sequitur, "That was before the Fourteenth Amendment..."? OK, so it was a non sequitur. (It was, by the by, relevant to your earlier claim, "He's [Trump] more of an originalist than Scalia was." Originalists support enforcing even those amendments not authored by the Framers and Founders.) A government strong enough to impose your standards is strong enough to ban them. #61. To: ConservingFreedom (#51) Scalia (and Thomas) joined, is that 'To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment.' The Fifth Amendment applied to the federal government, not the states. O’Connor's argument (odd that you left her name off) was premised on a position contrary to fact. BTW, Scalia didn't write a dissent. Beyond that, it was a policy argument. Legislative bodies set policy.
#62. To: ConservingFreedom (#60) Originalists support enforcing even those amendments not authored by the Framers and Founders.) Enforce the Fifth Amendment to your heart's content. It wasn't a restriction on the states, and neither was it the source of the state's inherent eminent domain and police powers. You keep trying to assume your false premise.
#63. To: Roscoe (#58)
And in so applying also applies the Fifth Amendment's Takings Clause. A government strong enough to impose your standards is strong enough to ban them. #64. To: ConservingFreedom (#63) And in so applying also applies the Fifth Amendment's Takings Clause. The Court rejected your penumbral emanation.
#65. To: Roscoe (#61) The Fifth Amendment applied to the federal government, not the states. The Fourteenth applied to the states.
BTW, Scalia didn't write a dissent. Which part of "joined" did you not undestand? A government strong enough to impose your standards is strong enough to ban them. #66. To: Roscoe (#64)
Clearly you're wrong. A government strong enough to impose your standards is strong enough to ban them. #67. To: ConservingFreedom (#65) The part that stuck Scalia's name on a dissent by O'Connor without naming her. Was that deliberate?
#68. To: Roscoe (#62) Enforce the Fifth Amendment to your heart's content. And also the Fourteenth? A government strong enough to impose your standards is strong enough to ban them. #69. To: Roscoe (#67)
That he joined. Look into a remedial reading course. A government strong enough to impose your standards is strong enough to ban them. #70. To: ConservingFreedom (#66) The Court ruled in 1897, "Due process of law, as applied to judicial proceedings instituted for the taking of private property for public use means. therefore, such process as recognizes the right of the owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation." "And in so applying also applies the Fifth Amendment's Takings Clause" appears nowhere in the 1897 decision. Tsk, tsk, tsk.
#71. To: ConservingFreedom (#69) That he joined. You didn't name O'Connor, just Scalia. Transparent dishonesty.
#72. To: ConservingFreedom (#68) And also the Fourteenth? Have you already forgotten what is actually says?
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Nothing about eminent domain there.
#73. To: Roscoe (#71) You didn't name O'Connor, just Scalia. Transparent nonsense - O'Connor, unlike Scalia, had not previously been mentioned on this thread and is of no clear relevance. A government strong enough to impose your standards is strong enough to ban them. #74. To: ConservingFreedom (#73) no clear relevance The author of the dissent. For shame.
#75. To: Roscoe (#70) Incorporation has often been traced back to Chicago, Burlington and Quincy Railroad v. City of Chicago - but on further examination the case for that looks weak to me. However, the "it took the U.S. Supreme Court 100 years" claim (not yours) is still wrong - from Gitlow v. New York (1925): "For present purposes we may and do assume that freedom of speech and of the press - which are protected by the First Amendment from abridgment by Congress - are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." A government strong enough to impose your standards is strong enough to ban them. #76. To: Roscoe (#74) The author of the dissent. Which is relevant to the current exchange how? A government strong enough to impose your standards is strong enough to ban them. #77. To: ConservingFreedom (#75) Gitlow v. New York A horrific bit of judicial legislation. Now the First Amendment means that federal judges may ban prayer in local schools, may crowbar the Ten Commandments off of state courthouse walls, may seize Nativity Scenes in the town square, that pro- life activists may be arrested for praying near abortuaries, etc.
#78. To: ConservingFreedom (#76) Which is relevant to the current exchange how? How is Scalia's joining a dissent by [the name you refuse to state] relevant to the current exchange?
#79. To: Roscoe (#77) Now the First Amendment means that federal judges may ban prayer in local schools, may crowbar the Ten Commandments off of state courthouse walls, may seize Nativity Scenes in the town square, that pro- life activists may be arrested for praying near abortuaries, etc. Those abominations required not only incorporation but also the inversion/perversion of "freedom of religion" into "freedom from religion" - and it's clear to me which is the more intrinsically objectionable. Gitlow, while not as far as I can see making a positive argument for incorporation, does note that Patterson v. Colorado, 205 U.S. 454 (1907) raised the question and left it undecided. So at least that early, the door was left open for incorporation. A government strong enough to impose your standards is strong enough to ban them. #80. To: Roscoe (#78) Scalia was cited by you as a standard of measurement for originalism: "He's more of an originalist than Scalia was." A government strong enough to impose your standards is strong enough to ban them. #81. To: ConservingFreedom (#80) Scalia was cited by you as a standard of measurement for originalism A low standard.
#82. To: Roscoe (#81) Ah, so "He's [Trump] more of an originalist than" was the proverbial faint praise. A government strong enough to impose your standards is strong enough to ban them. #83. To: ConservingFreedom (#82) No. Just a statement of fact.
#84. To: lana (#0) There are no less than four SCOTUS rulings defining Natural Born Citizen. Eli, Eli, nai erchomai Kurios Iesous. #85. To: BobCeleste (#84) Checked the claims about the first case - the author is wrong already: "In the Venus Case, Justice Livingston, who wrote the unanimous decision, quoted the entire §212nd paragraph from the French edition, using his own English, on p. 12 of the ruling:" That quotation was from Marshall's dissent and was in the context of inquiring "how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character or partaking of the character of the nation in which they reside" - nothing to do with natural born citizens. I don't have furhter time to waste on such poorly researched material. A government strong enough to impose your standards is strong enough to ban them. #86. To: lana (#0) Birthers swing... Birthers miss again... and again...
http://www.nydailynews.com/new-york/new-yorkers-seek-court-order-ted-cruz-ballot-article-1.2536639
New Yorkers seek court order to keep Ted Cruz off the ballot in state Republican presidential primaries because he was born in Canada
Judge to decide on lawsuit that seeks to toss Ted Cruz from New York primary ballot
NY Supreme Court judge dismisses challenge to Ted Cruz's ballot status
Judge tosses Ted Cruz citizenship challenge in Illinois
#87. To: ConservingFreedom (#85) How's this:
Cruz epitomizes the worst in both Clinton and Obama, he is a sex deviant and a illegal alien. Demand Cruz unseal his records and produce a CRBA with his name on it, issued by the USA when he was born in Canada.
Those that oppose the birther talk never present US Supreme Court cases, we who oppose Cruz based on his ineligibility, do. Folks, the US Constitution, like the bible is not about picking and choosing which parts you like, it is take it 1005 or you will have none of it. Article Two, Section Two, subsection Five is clear, one must be a Natural Born Citizen to be President of these Untied States. Cruz does not qualify. www.mainetv.net/col_lawre nce_sellin_001.htm www.mainetv.net/jim_buzzell_001.h tm www.mainetv.net/jlagrayfox.htm Eli, Eli, nai erchomai Kurios Iesous. #88. To: BobCeleste (#87) ruz epitomizes the worst in both Clinton and Obama, he is a sex deviant and a illegal alien. The sex allegation is an allegation. You or I don't know if it is true. He isn't an illegal alien. That doesn't mean he is a natural born citizen though. In my view he isn't. I have to say that to be consistent because I said the same of Obama.
#89. To: BobCeleste (#87) Those that oppose the birther talk never present US Supreme Court cases, we who oppose Cruz based on his ineligibility, do. And, as I showed, you get them wrong. A government strong enough to impose your standards is strong enough to ban them. #90. To: ConservingFreedom (#89) And, as I showed, you get them wrong. No you didn't show that. You talked about laws. If a law had to be passed that is not natural born.
#91. To: A K A Stone (#90) You talked about laws. I did? In which post(s)? A government strong enough to impose your standards is strong enough to ban them. #92. To: ConservingFreedom (#91) dont know or care. He isn't natural born.
#93. To: A K A Stone (#88) He isn't an illegal alien. That doesn't mean he is a natural born citizen though. Really? If he had no CRBA, “The child’s parents should contact the nearest U.S. Embassy or Consulate to apply for a Consular Report of Birth Abroad of a Citizen of the United States of America (CRBA) to document that the child is a U.S. citizen. He had no passport, so how did he get from Canada to the USA? If no CRBA and no Passport, what is he? Let me help you, he is an illegal alien. `eth yalad `eth muwth. #94. To: ConservingFreedom (#89) And, as I showed, you get them wrong. You did no such thing, what you did was give em some garbage about a decision from an inferior court, a ruling worth less than the paper is written on. `eth yalad `eth muwth. #95. To: BobCeleste (#94) what you did was give em some garbage about a decision from an inferior court You've confused me with someone else - one of the many things you're confused about. I showed that YOUR link got SEVERAL facts wrong about the FIRST Supreme Court case it cited. A government strong enough to impose your standards is strong enough to ban them. Top • Page Up • Full Thread • Page Down • Bottom/Latest |
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