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Ted and Marco eligibility – I can’t put this off any longer

Ted and Marco eligibility – I can’t put this off any longer

The analysis of the Natural Born Citizen clause in the Constitution as it applies to Ted Cruz and Marco Rubio.

I promised to do this long ago, and did the research with the assistance of a former student, but couldn’t bring myself to actually write it up for multiple reasons:

(1) it’s a subject which brings out the most vitriolic commenters and e-mailers (hey, why don’t we talk about a non-controversial subject instead, like Islam or Gay Marriage?) and I haven’t been in the mood;
(2) views on the subject have become like religion, incapable of disproving;
(3) I’ve generally been distracted, with each week bringing some new “crisis” to write about;
(4) I’m lazy by nature;
(5) the process of relocating from RI to NY started in March and continued through July, and sapped what little free time I had;
(6) this isn’t actually my job,
(7) I’m lazy by nature (but I repeat myself); and 
(8) bullet-proofing the analysis against the inevitable criticisms requires more painstaking drafting than normally takes place on the internet.

But it can’t be ignored anymore.

Scorecard via MoFo Politics:

If you’re keeping score at home…

I may disappear for a couple of days or more to avoid distractions, but I’m committed to getting this done and published prior to the start of the semester in late August.

NOTE ON COMMENTS:  I have reviewed the 103 comments to the prior post, so please don’t re-post the same stuff.  If you have anything truly new, feel free to post in comments here.


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    Musson in reply to dacama. | August 14, 2013 at 8:31 am

    I am sure that we can find a birth certificate on the Internet that says Cruz was born in Hawaii.

    Mike-in-Mass in reply to dacama. | August 14, 2013 at 2:03 pm

    Everyone (except nerkbuckeye on their previous Feb 13th post) overlooks the Supreme Court case Minor v. Happersett, 88 U.S. 162 (1875). This case mysteriously disappeared a few months before the 2008 elections from the free case law website “Justia”. Therefore it could only be found via subscription services like Lexis Nexus.

    Per the Supreme Court Ruling in 1875:

    “No person except a natural-born citizen or a citizen of the United States at the time of the adoption of the Constitution shall be eligible to the office of President, and that Congress shall have power “to establish a uniform rule of naturalization.” Thus, new citizens may be born or they may be created by naturalization.

    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. <== Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their

    Page 88 U. S. 168

    I’m shocked that the good Professor hasn’t stumbled across this in the past. But given his above reasons I can understand. I’ll save you all the work of searching. Maybe the Professor can confirm via Lexis Nexus as well.

      Well, I am NOT shocked that a Birther would neglect to finish
      what the Minor Court said in that same excerpt, that they didn’t need to decide about kids born here of foreigners. Because that part has been “scrubbed” by the Birthers because it guts their characterization of the case.

      If anybody wants to read a short explanation of the law, then I wrote this:

      Which, I don’t consider blog-pimping because I won’t get but 2 or 3 on it anyway. But it is there for people who want the right answers, and don’t want to slog through 9,000 pages of Apuzzo.

      Squeeky Fromm
      Girl Reporter

        Mike-in-Mass in reply to SqueekyFromm. | August 14, 2013 at 3:32 pm

        Resorting to name calling so soon? How civil & typical of your ilk. Why not let the professor weigh in on this. I didn’t scrub anything, that’s why I provided a link.

        Please note that the remainder of Miner v Happersett discusses naturalization. In no other portion of the ruling does the term “Natural-Born” appear. You are following the misinformation rules perfectly. Confuse the general public by getting them to believe naturalization equals natural-born, and then throw in “citizenship” as proof of eligibility. Bravo! Saul Alinsky would be very proud of you. Does George Soros pay you by the word?

          It is not “name calling” if it is true. Here is the part you quoted, with the part you left out in bold:

          Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

          Personally, I no longer find it “shocking” to see the part left out about the “not necessary to solve these doubts” because that is to Birthers, what gambling was to Rick’s Place in Casablanca. I do still have some curiosity concerning in what rational universe is a 1875 case which doesn’t solve doubts superior to an 1898 case which does???

          Plus, instead of you Birthers invoking Saul Alinsky every time you get busted out, maybe you guys should change your tactics, and start claiming instead that you were “profiled” as Birthers??? That word might get you more sympathy in today’s world. It wouldn’t make any more sense necessarily, but at least it would be different.

          Squeeky Fromm
          Girl Reporter

    vrajavala in reply to dacama. | August 14, 2013 at 6:08 pm

    I believe that you will find Leo Donofrio, Esq. to be the best authority on “natural born citizen”. He resides in New Jersey.

Well, this is something I have some experience with! I can hardly wait for your take on it. FWIW, this decision from the year 2020 may be of interest:

Squeeky Fromm
Girl Reporter

    DrJim77 in reply to SqueekyFromm. | August 14, 2013 at 9:52 am

    The REAL Atty Appuzo addresses SqueekyFromm’s ridiculous above propaganda post..

    I think the real SqueekyFromm’s handle has been hijacked by the infamous Fogbow…

      Actually, I will bet you that my prediction of a court order from 2020 will dovetail pretty closely with a real decision. It will certainly come far closer than some of the silly and superficial legal conclusions expressed by the Birthers on this thread.

      After years of dealing with them, I am still agog over the lack of depth they bring to any legal analysis. Birthers wake up in a new world every day, legally speaking, with the only common thread being Vattel and the ludicrous two citizen parents theory.

      Supposedly well read people on this thread seem amazed that Congress can actually pass laws on certain subjects mentioned in the Constitution, because those particular laws were not in effect in 1787. It’s like somebody complained, “How can Congress pass laws about bankruptcy when that is mentioned in the Constitution??? They can’t change the Constitution can they???”

      Do you laugh, or do you cry when you read that kind of abject ignorance???

      Squeeky Fromm
      Girl Reporter

        Mike-in-Mass in reply to SqueekyFromm. | August 15, 2013 at 9:43 am

        ==> Squeeky, Wow! Attorney Apuzzo really tore you a new one. Check & mate.
        <== Thanks to Drjim77

        Given your ridiculous persistence, you MUST be getting paid by the current administration. Or you are in a position where you rely on government assistance (welfare, snap, disability, etc) so you can sit and regurgitate absurd fabricated (or MSM talking points) rebuttals all day long.

        Sorry, I can’t keep up with you, I have to get back to work to subsidize your existence.

Humphreys Executor | August 13, 2013 at 5:26 pm


The correct interpretation happens to be the requirement that both parents are citizens when the candidate is born.

Ted Cruz has a problem because of his location of birth and the citizenship of his parents.

Marco Rubio is murky because he was born in the USA but his parents had not become citizens at the time of his birth.

Prior to the circus involving Barry Soetoro I have always understood that if one parent is not a US citizen then the children cannot become President. I have always had that understanding because my cousins are ineligible to become POTUS on the grounds that my aunt was not a US citizen when they were born, even though all of them were born in the USA. However, their children are eligible to become POTUS.

It is for this very reason that Arnold Schwarznegger is not eligible to be POTUS. He might be a US citizen now but his parents are Austrians, not American citizens.

    Sanddog in reply to Aussie. | August 13, 2013 at 7:13 pm

    Schwarznegger was not born in the US, nor were either of his parents American citizens. He’s a naturalized citizen, not a born citizen.

    BannedbytheGuardian in reply to Aussie. | August 13, 2013 at 7:36 pm

    Aussie .

    Anyone with a deep knowledge of demographics & language of the American states at the time then & now can offer a fact /interpretation for consideration . However I really think this is America’s to decide on.

    Your uber confident summation is odd. It is as if you have written it so thus be it.

    You might be better to compare it with your own constitution that has historical extreme fixed rules for the Majesty & the Prime Minister need only be a citizen .

      FWIW, Banned, many people around the world are more studied in the Constitution of the United States than most Americans. I have come across Aussie on different blogs and forums around the internet and have seen evidence that she is studied on the subject. It does not take an American to understand the Constitution and reading it and understanding it has been the motivating factor for many an immigrant to this great country.

      Banned, you say it is for Americans to interpret. Uh, this is not an issue of interpretation. It is a matter of accepting what was written, very clearly and upheld by the courts since its inception; or not accepting. It is a myth that the definition has never been decided and the Constitution is vague about the meaning. Aussie knows this as does most of the rest of the world. The “history” taught on this, here in America, the last fifty years has reeducated the masses to the point that we think it is an unsettled, undefined term that no one knows the meaning of. Many do not want to “go there” on eligibility of Cruz for the mere fact that they don’t want to be seen with, associated with, and/or known as a birther; a term the usurpers coined and created a negative, crazy image for.

      There are people around the world fighting to preserve America and its true, unpropagandized history. They have access to historical documents than have been hidden and kept out of view for almost two generations here in America.

      In light of these things, many appreciate the input of Constitutional Scholars, no matter where they are from! The advantage of these non-American scholars, who crave freedom themselves, studying our Constitution is that they see it oftentimes in its purest form, without our adulterations from politics and being victims of our public school system and main stream media telling us the founding fathers did not define nbc. There is going to come a time we are going to need freedom allies from around the world so why shut them out with a, “Mind your own business”?

      America falls, the World falls, as the saying goes. The World has a vested interest in America surviving as a Constitutional Republic and thus, many have made it a point to study our history and Constitution and know them better that we.

        BannedbytheGuardian in reply to Canusee. | August 14, 2013 at 2:49 am

        Many of the modern constitutions have looked at the US example in formulating theirs. It is interesting as to what is taken & what is not.

        There are academic courses on the US constitution in most universities political & Law faculties but most questions still resolve around slavery. How could all those wonderful ideals – including the earthly unique – pursuit of happiness – be written but then 80 more years of slavery & then 100 of Jim Crow laws.

        I think you have to be born in the USA to think like this .

        I think Americans have been very isolationist in their thinking for at least 100 if not 200 if not 300 if not 400 years. There have been few outside intellectual or social Disruptions. I am not saying it is good or bad – but it makes America what it is.

        They never take advice either 🙂

          Actually, the Natural Born requirement is in the Bible regarding the king (as understood by the Rabbis, at least one of his parents is born Jewish, and certainly he is so born); presumably for the same reason it is in the Constitution – to avoid a foreign Prince taking over.

          (We read it last Sabbath in the Synagogue, in the middle of Deut. there is a section that covers the same ground as the US Constitution, and there are interesting similarities.)

          “Pursuit of Happiness” is a clear substitution for property, as property can be alienated.

          Why did they allow slavery? Because if they didn’t, there would be no Union. Even so, this was an important point in the Lincoln-Douglas debates – Lincoln argued that the Declaration meant that Blacks were equal to Whites at least in a theoretical-philosophical sense, while Douglas felt that “men” meant “white men”.

        rantbot in reply to Canusee. | August 14, 2013 at 12:11 pm

        “I have come across Aussie on different blogs and forums around the internet and have seen evidence that she is studied on the subject.”

        Well that’s nice, because the post here certainly shows no strong evidence of that.

        “The correct interpretation happens to be …” – definitely not a promising start.

Arnold Swarznegger was born in Austria to Austrian parents. He was an Austrian citizen and became a US citizen through the naturalization process in 1983. He continues to possess Austrian Citizenship per that country’s rules.

He was ineligible for the presidency for precisely the rules laid out above, he was not a citizen by birth, but became one through the naturalization process.

Ted Cruz is a US citizen by birth, as is Marco Rubio. Unless they are going to have their birth certificates rescinded for some political reason, they are both eligible for the presidency.

Your understanding of the requirements of natural born meaning both parents had to be US citizens is incorrect. Why do you think there are so many Mexicans desperate to have a baby in this country, hence the term, anchor babies? As soon as that baby arrives, despite having a mother who is illegal and possibly an unknown father, that kid is a US citizen. That child would also be eligible for the presidency, as he/she was a US citizen the minute of his first breath, as long as it was on US soil.

Put me in the “both eligible” camp. It seems the most reasonable interpretation of the state of understanding at the time the clause was written; the 14th amendment (section 1); the various naturalization acts from the 1790s, forward; and the sparse case law on the topic.

natural vs naturalized.

    GrumpyOne in reply to dmacleo. | August 13, 2013 at 9:36 pm

    I think that this sums it up… One or the other.

      tigercpa in reply to GrumpyOne. | August 14, 2013 at 3:50 pm

      Correct, it’s either natural or statutory. Ted Cruz was not born in the jurisdiction of the United States. His father owed allegiance to a foreign sovereignty called Cuba.

      Ted Cruz is not in the language of our Constitution a natural born Citizen. He is a statutory U.S. Citizen eligible for the Senate or House of Representatives.

    Estragon in reply to dmacleo. | August 14, 2013 at 2:31 am

    This is precisely how it is has always been discussed. But some people insist on reading their own – or someone else’s – imputed meanings to simple language.

    Of course, Ron Paul notwithstanding, the Constitution provides a mechanism for resolving disputes about it. But these zealots of the long form definitions never want to pony up the money to fight the question in those rare occasions they might have the standing to do it.

I think he is eligible for reasons Allahpundit laid out in his recent post:

Realistically, no judge is going to disqualify a national figure who stands a real chance of being the nominee of one of the two major parties unless the law leaves them no wiggle room to rule otherwise. Tens of millions of Americans would be willing to vote for Ted Cruz; to strike him from the ballot on a technicality in an ambiguous case would be momentously undemocratic. Against that backdrop, the Supreme Court would almost certainly end up reading “natural born” in the narrowest way, excluding anyone who was born abroad of two non-citizen parents but including everyone else. Cruz, who was born in Canada but whose mother was a U.S. citizen, would qualify, not only for the reason Ace gives here but more broadly because courts don’t want to be seen as hard-ass enforcers of what’s perceived by many to be an unusually archaic bit of the Constitution. They’ll dump a true foreigner because they have to. They don’t have to dump the son of an American citizen like Cruz, so they won’t. Take it to the bank.

I was going to write much the same yesterday but it would have made me late to the new job. We already know SCOTUS has refused many many many times to weigh in on the many many many lawsuits filed against Obama. The only way they would take the case would be as Allahpundit suggests, if a candidate were clearly ineligible. Take it to the bank.

    9thDistrictNeighbor in reply to Mary Sue. | August 13, 2013 at 9:42 pm

    “We already know SCOTUS has refused many many many times to weigh in on the many many many lawsuits filed against Obama.”

    I think this is the point. Also, the same charges were leveled again John McCain, born in the Canal Zone.

      They chose(not us chose)John McCain to be the Republican nominee because they could use this very thing to muddy the waters(which they are fond of doing). They also chose(not us chose)Mitt Romney due to his father’s possible birth problems. See a pattern here? It’s always about what they can do not us. I don’t understand why we can’t stand up.

        Milhouse in reply to Ike1. | August 14, 2013 at 2:16 pm

        That’s insane. Even according to the people who insist on Vattel’s definition, how does that affect Mitt Romney? He was born in the USA to two USA citizens. Who cares where his father was born?

Get it done William. Am not sure what is worse you putting up a post that you will at some future date post something or me taking the time to respond to it 😉
Thank you for reading through the 103 replies in the past as I sure wont bother to.

No one is a bigger fan of Ted Cruz than me.

I don’t think he meets natural born eligibility requirement based on the information I have researched so far.

    You are the kind of person I feel sorry for, because I think that you are sincere, but also the sad victim of a deliberate campaign of disinformation propagated by legal quacks. The two-citizen parent stuff is purely imaginary law and on a par with the Flag Fringe people, who tell you if the flag has fringe on it, then you are in an admiralty court, and stuff like that.

    Squeeky Fromm
    Girl Reporter

      I know that view would be unpopular. But it would be hypocritical to go with the flow.

      I independently researched this personally. No one talks me into or out of an point of view.

      That is why I am Conservative To. The. Bone.

      If further vetting and additional confirmed information shows he is eligible no one will be happier than me.

      He is the kind of man we need in the White House.

        Well, popular or not-popular never stopped me, and I hope it never stops you either. The Courts haven’t ever spoken about the candidate who is born outside the country, and is a citizen at birth. I think they will find that cits-at-b, like Cruz are also nbc’s because Congress has the right to legislate on citizenship for people born outside the country (and the 14th Amendment).

        However, they have been pretty clear that people born inside the country are nbc’s regardless of parentage, subject only to two exceptions.

        Squeeky Fromm
        Girl Reporter

I also don’t believe Obama meets natural born eligibility requirement based on the information I have researched so far and that his two terms in office are in violation of the US Constitution.

theduchessofkitty | August 13, 2013 at 7:03 pm

I don’t blame you, Professor. This is getting ridiculous.

Maybe a Constitutional Convention among the States will be needed to sort this one out.

Obama is President, yet we’re debating this? Unlike Obama, Cruz’s mother was an adult United States citizen when he was born, and his father, I presume, had become a citizen and was educated in an American land grand colleges/university. Obama’s mother was still a minor when he was born – and Barack Sr. was NOT an American citizen. Cruz passed the eligibility bar easier than Obama. Cruz’s candidacy passes muster.

The real question is if Rubio is eligible. Under a strict interpretation of statutes Marco Rubio is not eligible, but under the modern interpretation of the statutes he is eligible. Most “experts” will probably say he is eligible, with those on the Left joining – because that way it will be easier to get another like Barack Obama to the Presidency.

Henry Hawkins | August 13, 2013 at 7:45 pm

I’d like to point out we still haven’t seen the professor’s birth certificate or college transcripts.

Also, I’m pretty sure Ted Cruz is Cherokee.

Ted and Marco have no realistic shot.

Kerry’s gonna be run by the democrats. Where I doubt he’d put Hillary in the veep slot. (There are so many other “worthies.”)

As to Obama, he’s probably what was called “an illigitmate birth.” In Seattle Washington. Because his Hawaiian mother (all of 17 at the time), was sent to an “unwed mother’s home, where she wouldn’t be seen pregnant.) And, she didn’t get to go home for two years. Where, with her parents help, a “story” got cooked up. (It was obvious that Obama’s dad was black.) I think Obama senior’s excuse was the he was already married. But it didn’t matter when the story got cooked up. Kenya was just one of those legs that carried benefits.

Then, Stanley Dunham married Soetoro when Obama was six.

I’d bet the “real” birth certificate is at the Vatican. In their vaults. And, no one gains access to those old records. Kid were adopted out wholesale … to white couples. But not kids who were racially mixed. (We don’t approach that until Vietnam, when American soldiers married their brides. And, history got one of its biggest “shoves.”)

This is no longer a big deal.

But Ted and Marco are not what the Hispanic community wants! It is, however, a “wish list” item among warring conservatives.

When I was in fifth grade civics I learned that a “natural born citizen” is a citizen born in a country to parents who are both citizens at the time of the child’s birth. My father, whose parents had both come from Ireland and were naturalized citizens after my father was born, was ineligible to become president. But I could!

Now I do understand that fifth grade civics isn’t a law class, but this blog entry confirmed for me what I had learned long ago…

“Now as to the correct definition of a “natural born Citizen,” here it is: A “natural born Citizen” is a child born in a country to parents who are its “citizens” at the time of the child’s birth. This is the settled definition of the clause under American national common law. See Emer de Vattel, The Law of Nations, Section 212 Citizens and natives (London 1797) (1st ed. Neuchatel 1758) (“The natives, or natural-born citizens, are those born in the country, of parents who are citizens”); The Venus, 12 U.S. 8 Cranch 253, 289 (1814) (C.J. Marshall concurring); Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830); Shanks v. Dupont, 28 U.S. 242, 245 (1830; Dred Scott v. Sandford, 60 U.S. 393, 476-77 (1857) (J. Daniels concurring); Minor v. Happersett, 88 U.S. 162, 168-170 (1875); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890); United States v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (all confirmed Vattel’s Section 212 of the The Law of Nations (London 1797) (1st ed. Neuchatel 1758) definition of the “natural-born citizens” who “are those born in the country, of parents who are citizens”). This is the only definition of the clause that has ever existed and which has been recognized by our U.S. Supreme Court. The conditions of being born in the country to “citizen” parents are both necessary and sufficient conditions of being a “natural born Citizen.” The definition of a “natural born Citizen” therefore excludes anyone who is either not born in the country (or its jurisdictional equivalent) or not born to parents (both parents) who are its “citizens” at the time of the child’s birth or both.”

Here’s the link

    Well, I am sure a lot of people would love to see that civics book! Because to date, no Birther has presented one which had that in it. As far as Wong Kim Ark (1898), I think maybe you are reading the Dissent. Because the majority cited Rhodes, for people born here, to wit:

    . . .all persons born in the allegiance of the United States are natural-born citizens.

    And, in the allegiance simply meant not being the kid of a diplomat or hostile invader.

    Squeeky Fromm
    Girl Reporter

      tigercpa in reply to SqueekyFromm. | August 14, 2013 at 2:31 pm

      Ark was only declared a citizen. Natural born citizen was not at issue in this case.

        That is a very simplistic and conclusory analysis. The WKA court was faced with the question of whether WKA was born “subject to the jurisdiction thereof” of the United States, since he had been born after the 14th Amendment. There wasn’t any question that he was born here.

        The WKA court began by determining that “natural born citizenship” was simply being born in the US, and under its allegiance, which meant having parents who were neither diplomats nor hostile invaders. That is why 2 of the 7 sections of the case deal directly with “natural born” subjects/citizens.

        The WKA Court then found that the 14th Amendment said the same thing, and had just incorporated old English common law, and then the American common law, on natural born subjects/citizens into the Constitution – where it would be safer than simply leaving it to common law, or Congressional acts, such as the 1866 Civil Rights Act. FWIW, this is also why we have a “Bill of Rights” in the Constitution, so that certain rights were more protected, and less easily taken away.

        When the WKA Court said that WKA was a “citizen”, it was based on a finding that he was both born here and under the allegiance or jurisdiction, which was what was required by the 14th Amendment. These are the same requirements set forth by prior common law to be a natural born citizen – that one be born here, and under the allegiance or jurisdiction.

        Which is why one of the dissenting judges flatly said that the majority would be making a Chinaman eligible for the Presidency.

        For the purposes of that case, it was the same thing. That is why the Ankeny Court found Obama eligible. It is why all the rest of the courts have tossed out the two citizen parent theory. For a person born here, subject to the jurisdiction, that person is a 14th Amendment citizen, and also a “natural born citizen.”

        With Cruz, the issue is less settled, because he is not a 14th Amendment citizen. He wasn’t born here. The question for him will be whether or not Congress can extend the status of natural born citizenship upon someone born overseas. Which, as I set out in the 2020 court case link above, I think the answer will be “yes.”

        Squeeky Fromm
        Girl Reporter

          tigercpa in reply to SqueekyFromm. | August 14, 2013 at 4:18 pm

          How can one be a natural citizen and a statutory citizen at the same time? The two options do appear to be mutually exclusive. Even the founders sought to use different words (natural born citizen versus citizen) in Article II.

          Ark’s attorney asserted he was natural born, but the Court did not find such.

          It states that he is a citizen (presumably vis-a-vis the 14th Amendment), BUT stops short of declaring him a “natural-born” citizen. The 14th Amendment does not override Article II.

          To TigerCPA:

          You asked: “How can one be a natural citizen and a statutory citizen at the same time?”

          Uh, maybe the same way a person can be a female, a woman, a chick, and a Girl Reporter all at the same time.

          These are not mutually exclusive categories. When statutory law kicks in, common law generally kicks out. Yesterday’s common law “natural born citizens are today’s 14th Amendment’s ” all persons born in the United States and subject to the jurisdiction thereof.”

          Which, is what the Wong Kim Ark Court flatly came out and said. This whole thing isn’t really that hard to understand.

          Squeeky Fromm
          Girl Reporter

      DrJim77 in reply to SqueekyFromm. | August 15, 2013 at 10:20 am

      I also learned in 4th grade back in the 1960’s that to be president, both parents must be US citizens (jus sanguinis). Back around 2009 I read some info that was published by the Government aimed at school based civics that supported that assertion and it being scrub a dubbed shortly thereafter.

      Shalviah in reply to SqueekyFromm. | August 15, 2013 at 1:30 pm

      Love your handle, seems to fit you perfectly!

    Uncle Samuel in reply to Shalviah. | August 13, 2013 at 8:39 pm

    The same grounds to prevent Cruz would allow us to throw out and nullify the current most unsatisfactory, (insert expletives) occupant of the WH.

I agree with the comment at Ace of Spades – Coulter is trying to clear the way for Christie.

Fuggedaboudit, Coulter. Romney was a loser, and Christie would be also.

Section 2

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Section 3

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen

Article II, Section 1

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

Either the words in the Constitution matter, or they don’t.

What’s it going to be?

    Kinnick in reply to Browndog. | August 13, 2013 at 9:22 pm

    In your quote of Article II, Section 1 is correct, wouldn’t the placement of the commas indicate that anyone having attained Citizenship of the United States, rather than being a natural born Citizen, be eligible if they meet the other requirements, thirty-five years and fourteen years of residency?

      Humphreys Executor in reply to Kinnick. | August 14, 2013 at 12:05 am

      Are persons born by caesarian section eligible? What about people produced by artificial insemination or embryo transplants? If we’re going to strictly apply the common meaning of “natural born” then anyone born by unnatural means is ineligible. No?

      tigercpa in reply to Kinnick. | August 14, 2013 at 2:29 pm

      No, the requirements are (1) natural born citizen or (2) a citizen of the United States, at the time of adoption…

      The Founders knew they were not natural born citizens, so they inserted a grandfather clause.

      My guess is there’s no one still alive that was a citizen at the time of adoption…they would be 200+ years old.

      Cruz, Haley, Jindal, Obama, Rubio – NOT eligible.

      As one posted noted above, we learned in grade school natural born = 2 citizen parents, born in USA.

      Chester Arthur also usurped the Presidency.

    PersonFromPorlock in reply to Browndog. | August 13, 2013 at 10:28 pm

    If you read what’s actually there in A2S1, you’ll discover that the inescapable requirement is that the president must have been alive in 1793. “Natural born Citizen” and “Citizen of the United States” are independent clauses to which “at the time of the Adoption of this Constitution” applies equally.

    That’s if we’re being finicky.

      Uncle Samuel in reply to PersonFromPorlock. | August 14, 2013 at 4:48 am

      Ted Cruz was/is ‘alive’ in the spirit of the Constitution and its drafters’ (in agreement with).

      Obama is not and never has been – he’s a Marxist, Islamist through and through. Every act of Obama since assuming power has been contradictory to the Constitution, to the balance of power and to the detriment of this nation, its defense and its citizens.

      If we have to give up a Cruz candidacy, we should be able to remove Obama on the same grounds. His father was NEVER, EVER a citizen.

      Mybe too finicky. The phrase “at the time of the Adoption of this Constitution” is only the modifier for the phrase “a Citizen of the United States”.

      You can re-write it into two different sentences to make it clearer what the two categories of people eligible to be the American president are:

      “A natural born Citizen shall be eligible to the Office of President; “

      “A Citizen of the United States at the time of the Adoption of this Constitution shall be eligible to the Office of President;

It will be ironic, in a twisted sense, when the Dhimmicrats demand to see Sen. Cruz’s birth certificate and denounce Sen. Rubio because both his parents weren’t US citizens when he was born.

If loyalty is the root issue, why wouldn’t we read the constitution as allowing a child born of “not yet” citizens to be natural born IF the parents gained citizenship while the child is a minor? After all, at the time when the constitution was written (and at the time that the Fourteenth was adopted), the man was might have been prevented by law (time requirements) from achieving citizenship before the birth of the child. Thus, his loyalty would be “proved” by his affirmative rejection of his prior loyalty and his affirmative acceptance of his new (US) loyalty.

If he had more children who were born after he was a citizen, the Framers (“all men are created equal”) could not have endorsed one offspring being OK and another not OK. That would have seemed absurd to them, no?

In those days, it was not uncommon for a man to marry a woman (who he impregnated) after the baby was born and thereby legitimize (remove the bastard status) the child. Such is still the law in many states (maybe all). Why would that VOLUNTARY attitude not be applicable to citizenship as well?

I would rather trust people who legitimized their children by choice, just like today a naturalized citizen knows more about our history than the native born citizens. If you look at POTUS, one parent was a minor and the other never showed any interest in “joining” us. Compare that with Jindal, Cruz, or even Rubio. There’s no comparison.

    Kinnick in reply to platypus. | August 13, 2013 at 11:08 pm

    Uh-oh, there’s that “bastard” word again. You’re not Ned Stark’s bastard, are you? 🙂

    You make a fine point. Aside from his stance on illegal immigrants and amnesty, Rubio is a patriot. Ted Cruz more so. Which is why Leftist legal groups will be challenging both men’s eligibility if one or the other is the GOP nominee in 2016, even more so if they win the 2016 election. There will be court challenges right up to the day the Electoral Collage ratifies the election results.

    At least a Sarah Palin candidacy and victory would not involve Citizenship court challenges! 🙂

I like Ted Cruz. He seems like a smart, normal man based on some of his common sense observations about Congress and the government. He hasn’t been infected with the DC disease yet.

However, I think he’s still too new to be considered for President. But that might be an asset. I dunno.

I’d prefer an old boring guy to run for President who isn’t going to make a million promises he can’t keep. I’d just like for him to adhere to the Constitution and quietly try to downsize the Leviathan into workable order.

    Uncle Samuel in reply to GoldenAh. | August 14, 2013 at 4:53 am

    Cruz has similar job experience as Reagan – Attorney General of Tx, whereas Reagan was a Governor.

    We need a new Sheriff in town to restore Law and Order (and clean out Holder’s DOJ.

    Cruz just might be that man. If not President, Attorney General.

      Uncle Samuel in reply to Uncle Samuel. | August 14, 2013 at 4:54 am

      My Dream would be to have Mark Levin as Attorney General.

      Uncle Samuel in reply to Uncle Samuel. | August 14, 2013 at 5:07 am

      Coulter is an enigma. She is a RINO at best and not a social conservative at all.

      Ironically, she brings this up, when she consistently backs the dark horse, not the one that would build the long term health (economic, legal, social, military defense) of this nation.

      Coulter lost all conservative credentials in the last election. She’s a closet big-government Bushite socialist. I would no more listen to her than Obama.

BannedbytheGuardian | August 13, 2013 at 11:12 pm

This is like the plotting & eliminations of whom would be heirs to the English throne.

The best I can offer is a Archbishop of Canterbury app …….

Btw – Cruz has a catholic parent ? – out. Rubio – out . Jindal – Hindu parent -out.

Hillary – a loonatic – out .

Simple really.

I try to clear away the fluff by using the following dichotomy.

A child born in a land of two citizens of that land is a citizen of that land. No law is required to determine citizenship. Natural citizen.

If the land must refer to laws to determine the child’s citizenship the child is not a natural citizen.

The true issue isn’t eventual citizenship, however.

For example, John McCain became a US citizen by virtue of a law passed in the year of (or just after) his birth,

A resolution was made in congress to qualify him as ‘natural-born’, which I don’t think would be necessary if McCain were actually a natural born citizen.


As a poster said above, natural vs. naturalized. Short and sweet.

Has anyone started a betting pool as to what conclusion Professor will come to?

    Put me down for “eligible.” This is such a slam-dunk that I would feel guilty taking any poor Birther’s money.

    Squeeky Fromm
    Girl Reporter

    Skookum in reply to Canusee. | August 14, 2013 at 1:59 am

    It appears that the cowardly Prof. Jacobson is a closet Obama-ist; thus, he must conclude that Cruz and The Rube are eligible. Don’t expect that flawed conclusion to be supported by facts and law, though — because it can’t. The Cowardly Prof will need to do his best John Roberts impression to contort reality to shape his elitist wishes.

      Henry Hawkins in reply to Skookum. | August 14, 2013 at 12:07 pm

      The professor publishes a blog under his real name, revealing his true occupation and place of work, as well as where he lives, and some anonymous troll on the internet calls him a coward.

      Your trolling is productive… why? I’m not seeing it.


My prediction: SCOTUS won’t touch it and the issue will never be settled.

Just a few thoughts: I think one of the problems here is that most Americans assume that since a child born in the US is granted US citizenship that most other countries do something similar, when, in fact automatic citizenship via location of birth is more the exception rather than the rule.

In Ace’s blog, he even brings up the case of kids born to US service members in Germany who have an American father and a German mother as an example, without knowing that there are a lot of legal exceptions in those cases.

Anyway, if you are a US citizen, and you have a child while overseas, in most cases, the child does not automatically gain citizenship to the country in which he or she was born. The American parent (or parents) then have to go through the paperwork of reporting a US birth abroad to the consulate. In the cases where only one parent is a US citizen, the child will often have dual citizenship, however, the US didn’t officially recognize most cases of dual citizenship until about 10 years ago. Furthermore, if a child held dual citizenship, up until the time of the change in US position, at age 18, the child had to choose one nationality or the other.

As for the Germany example, apparently, at least until 1976, if a child born to a US servicemember was born in a German hospital, they were afforded the option of carrying (dual) German citizenship, although this was not the general case for foreigners in Germany.

(One of the issues that Germany has had with all the Turkish immigration is that they got to be in the situation where there were many Turks in Germany who had lived there their whole lives, but did not have German citizenship, because German law, before 1975, stipulated that a child born in Germany must have a German father to have German citizenship at birth. After 1975, either parent could bestow German citizenship on a child. It was only in the last 10 years or so that Germany has “loosened” their regulations to say that children born in the country may get German citizenship if their parents have been legal residents for at least 8 years.)

There was a guy on Jeopardy! several months back who had no citizenship until he was 18. His story was as follows: Both of his parents had escaped Cuba for the US, but legally were stateless Cubans. They went to France for a couple of years as students, during which time this guy was born. After that, they returned to the US. And so, as you can see, he wasn’t a Cuban citizen, he wasn’t a US citizen (non-US parents having a child outside the US), and he wasn’t a French citizen (because the French don’t/didn’t bestow automatic citizenship on babies born in France). Apparently, once he turned 18, he became naturalized as a US citizen.

My two cents is that “natural-born” citizen would simply apply to anyone who was a US citizen by birth, regardless of where that birth took place, or that sometimes it takes some time to get the paperwork finalized.

I have studied this issue since 2008, and I have yet to see one valid argument supporting natural-born citizenship for Obama, The Rube, Cruz, Arthur, or G. Romney. I’m shocked to learn that Prof. Jacobson, who runs an otherwise great blog, is just another post-constitutional elitist who can’t bother to get up to speed on a rather trivial matter of constitutional law. Just one more sign that we are no longer a nation of laws, but merely an assemblage of people, where the elites count more than the rest of us and make up the rules as they go along.

    Well, then you ain’t looked very hard. Because it’s about as close as Old Wong Kim Ark (1898). All you have to do is read it.

    Squeeky Fromm
    Girl Reporter

      Mike-in-Mass in reply to SqueekyFromm. | August 14, 2013 at 3:48 pm

      You beat the disinformation drum really hard don’t you? Kim Wong Ark was all about citizenship. NOT presidential eligibility i.e. Natural Born Citizen.

        tigercpa in reply to Mike-in-Mass. | August 15, 2013 at 2:21 am

        Yes, there’s more than a few who attempt to conflate the two terms.

        Hey, the clown car is full, but let Squeeky squeeze in…

Of course, the question of what “natural born citizen” means only came up once prior to McCain, being resurrected in the cases of Obama, and now Rubio and Cruz. It was always spurious. The first questioned was George Romney, whose grandfather had moved to Mexico with several wives (a polygamous Mormon), but none of them ever renounced US citizenship or claimed Mexican citizenship, who was born in Mexico and would have been considered a holder of “dual citizenship” until the age of 18.

The Constitution was clearly concerned with the potential of foreigners attempting to take over. The Revolution was still a clear memory at the time. At no point did any of the drafters or Founders or any early court case even consider that a person born abroad to an American citizen had the full rights and privileges of “natural born” citizens.

The application of this concept to Presidential eligibility was only intended to go that far, and no case ever was made (of which I am aware) that it meant something else.

In every one of these cases, where the Congressional Research Service has been asked for an opinion, they came back with a verdict of eligibility. The consensus of constitutional lawyers and scholars has always been the same.

As has been pointed out elsewhere in the cases of McCain, Obama, Rubio, and Cruz, they are all eligible and none qualified.

Natural born citizen is just that: a person who was born an American Citizen or eligible exercise that right on his 18th Birthday by reason of birth.

Too many people conflate the term natural born citizen with the first sentence of the 14th Amendment: “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”..

    Jack Long in reply to sequester. | August 14, 2013 at 10:20 am

    Does a person born in the US to two US parents need the 14th amendment to be a US citizen? (What would the citizenship be otherwise?)

    Would a child from an affair between Prince William (as an example, of course) and a waitress from Podunk, USA and born in the USA need the 14th amendment to be a US citizen?

    The answer to the first example would be no, while the answer to the second would be yes. The first case is a natural citizen, the second case is a statuatory citizen.

    The founders wanted to avoid a second scenario possibility with regard to persons assuming the presidency IMO.

      Milhouse in reply to Jack Long. | August 14, 2013 at 3:08 pm

      Does a person born in the US to two US parents need the 14th amendment to be a US citizen?

      Yes. Why do you think it was enacted in the first place? To protect the citizenship of black people who were born in the USA, as were their parents, grandparents, and great-grandparents. And yet without the 14th their citizenship was under challenge.

      (What would the citizenship be otherwise?)

      Who cares? How is that relevant? How does lack of any other citizenship make one a US citizen? Have you never heard of stateless people?

CNN has weighed in: Cruz is eligible.

Eligible. Personally, I have always taken “natural born” to mean “a citizen at the time of birth.” As I understand it, that would require one citizen parent or birth in the USA.

I look forward to your post, Professor. Somebody qualified needs to wade through the case law and precedent and summarize how the “natural born” provision has been applied throughout our history. I hope to learn there’s a consistent answer out there. If not, this will be a big mess.

Opinion from Redneck Law:
Cruz is just as eligible as Barry Soetoro, as both were born of mothers who were U.S. citizens.

(Now, don’t take this as S/. I never understood the underlying issue with the actual birth certificate with Barry. If he was born in a thatch hut in Kenya, IMHO, he is a U.S. citizen, as his mother is a U.S. citizen)

    Jack Long in reply to Redneck Law. | August 14, 2013 at 10:35 am

    I don’t believe his mother was old enough to confer US citizenship in a non-CONUS birth according to statutes at the time. She would have to have lived in the US 5 years after age 14 to confer US citizenship and I believe she gave birth at 18.

    If she wasn’t married she may have been able to confer citizenship non-CONUS, however. The statutes change somewhat and there is a difference between wedlock and out of wedlock births.

      Milhouse in reply to Jack Long. | August 14, 2013 at 3:18 pm

      That is nonsense. The clause you’re citing applied to foreign-born citizens, and prevented them from passing creating a second generation of foreign-born citizens, with no connection to the USA. And even for them, the clock only started ticking when they were old enough to come back to the USA and chose not to.

It’s a bizarro world to me when Ann Coulter actually takes note that “Natural Born Citizen” isn’t “Citzen” and Ted Cruz doesn’t. A few questions for the prof to ask himself:
1. Why is the term “Natural Born Citizen” used separate and for different qualification that “Citizen” in the Constitution?
2. Where did the Founders reference this term elsewhere (including the first 3 immigration acts of the new Congress)?
3. Why would Article 2 exempt first generation citizens “at the time of the signing of this Constitution” from being “natural born” if “natural born” meant something more than just “citzen.”
4. Why is there a letter from John Jay to Geo Washington and a discussion in the Federalist Papers specifically about protecting the most powerful office from those who don’t have a complete 2nd generational allegiance to the United States?

And if you haven’t read the explanation of why Ark v Wong and Minor v. Happersett have already decided this – you can read that here:

Henry Hawkins | August 14, 2013 at 10:09 am

Out of fear of alienating the Hispanic voters, I’m pretty sure the Democrats will not go ‘birther’ on Cruz or Rubio, and let the legal beagles sniff it out. Besides, the emerging Democrat meme is that Hillary Clinton is unbeatable in 2016, so why take the risk?

Two attorneys did exhaustive work on the legal history and art of “Natural Born Citizen. Attorneys Mario Apuzzo and Leo Donofrio brought their cases regarding “Natural Born Citizen” and obama’s lack thereof to SCOTUS to only be denied a hearing at conference with no comments explaining why. Actually Justice Clarence Thomas did make a public comment at a seminar stating “we are avoiding that Issue” and further stated that we are giving Congress a chance to address that issue.

Attorneys Apuzzo and Donfrio performed hundreds of hours of legal and historical research on the topic. The link to their websites are below.

Professor, I know you have been avoiding the hornet’s nest of the “Natural Born Citizen” topic. Are you now really ready to be labeled a racist birther by the progressive main stream media ? Logic, reason and sound legal arguments mean nothing as the culpability of letting this topic fester into oblivion and decisiveness goes deep within both the elite republican and progressive democratic party.

God speed Professor…

    Yeah, about this:

    “Attorneys Apuzzo and Donfrio performed hundreds of hours of legal and historical research on the topic. The link to their websites are below.”

    Whatever happened when they, or anybody relying on them, got anywhere near a REAL court??? Them, and their silly theories got chunked out in the dumpster with the half-eaten sandwiches, kleenex, and food scraps from the cafeteria.

    Please, put a little truth in your advertising.

    Squeeky Fromm
    Girl Reporter

I’m a tad shocked at the level and depth of the avoidance and divisiveness of the subject matter.

This isn’t about Rubio, Obama, Cruz. It’s not about politics. It’s not about conspiracies.

It’s about the Constitution.

Once again I have to say how deeply disappointed I am that those on the right have adopted the pejorative created by the left–Birther.

If you don’t know, don’t wanna know, and/or don’t care, fine.

But, to belittle those that do want to know, and do care is quite disturbing.

Ted Cruz is not a NBC citizen. Only his mother was a citizen at the time of his birth. In the words of Thomas Paine-On The Rights of Man, found in the section on the Constitution, Cruz and Obama were born half a foreigner, Rubio was born a foreigner.

Read the section Natural Born Citizen found on the right hand side of the page on Publius-Huldah’s Blog. She is a fantastic source for all things regarding the Constitution. She uses the Declaration of Independence, The Constitution, the Federalists Papers, and a few other documents written by the Founders at the time of the Founding.

Sorry there are no links but this is the first time I have ever commented and I am still learning. With the information provided you can find the site easily enough.

Seems like you have to be born in America or in American-controlled territory to be natural. I believe that one of the post-slavery amendments expands on this a bit.

But what fascinates me–and this is quite off topic–is that this language, “or a Citizen of the United States, at the time of the Adoption of this Constitution”, was apparently inserted into the document to allow Alexander Hamilton, born in the West Indies, to become president. Imagine, having your own personal clause in the Constitution.

    rantbot in reply to James IIa. | August 14, 2013 at 12:33 pm

    “apparently inserted into the document to allow Alexander Hamilton, born in the West Indies, to become president.”

    That’s funny, most discussion I’ve seen in historical tracts figures the exact opposite. Some were very worried about the possibility of a blatantly Anglophile President Hamilton.

    Milhouse in reply to James IIa. | August 14, 2013 at 1:37 pm

    Wrong. I can’t imagine where you got this idea. The clause is there because in 1788 there were no natural-born citizens of the USA. Even if you counted from independence, the oldest NBCs would have been 12. If you didn’t exempt people who were citizens at the time of adoption, then the presidency would have had to remain vacant for at least 23 years! The first president who was born in the USA was Martin van Buren.

James, at the time of founding of the country and the time of the creation of the Constitution no one was a “Natural Born Citizen Of The United States Of America.” Why? There was no United States of America.

    James IIa in reply to VotingFemale. | August 14, 2013 at 12:02 pm

    Good point. I would have thought that anyone born in one of the original states (when they were colonies) would have been considered a natural born citizen, but I doubt there’s any case law on that topic.

      msilaghi in reply to James IIa. | August 14, 2013 at 12:25 pm

      On July 3rd, 1776 the colonists were British subjects. On July 4th,1776 they became American citizens by law.

      Still am working on providing links. Go to Publius-Huldah’s Blog. The scales will fall from your eyes.

      Milhouse in reply to James IIa. | August 14, 2013 at 1:39 pm

      I would have thought that anyone born in one of the original states (when they were colonies) would have been considered a natural born citizen,

      Why on earth would that be? They were natural born subjects of the King of the UK; their natural duty of loyalty was to him. They’d renounced that loyalty, for good cause, but that didn’t automatically make them naturally loyal to some other power, i.e. their state or the USA!

The birthers were factually wrong about Obama, who was actually born in American territory, but I think they are right in spirit. When you look at the citizenship and residency requirements for federal offices, you see that the point is not that birth at some point on the globe conveys a magical quality to a person, but that people who take these influential offices should have absorbed the cultural and civil characteristics of an American. That is where Obama is a complete failure. If we could have managed space and time travel for him he would have made a marvelous president of the Soviet Union or Cuba, probably a little less bloodthirsty and on the whole a step up. But as president of the US he feels like a foreigner. By this standard Cruz and Rubio are as American as George Washington.

    DrJim77 in reply to James IIa. | August 15, 2013 at 10:46 am

    Hawaii was a state when obama was born, not a territory. To say it is a fact that obama was born in Hawaii is completely undocumented. No genuine legally certified documents regarding his birth place have ever been presented. The birth certificate that is still posted on the White House website has been proven to be a 100% forgery.

      Hawk_TX in reply to DrJim77. | August 16, 2013 at 5:10 pm

      Exactly. The “birth certificate” the white house released is not a valid legal document. First it is signed by Alvin T. Onaka state registrar instead of the registrar in 1961. Second it is dated almost 50 years later than the genuine document would be. Third it says that it is a “true copy or abstract”. Meaning that it was assembled from other documents. And finally it lacks a state seal, without which it is not a valid legal document.

[…] I very much look forward to the estimable William A. Jacobson’s take on the issue. […]

myveryownpointofview | August 14, 2013 at 2:01 pm

On one hand – the “terrible birthers” claim that to be a natural born citizen one must be born to two US citizens on US soil or territory. So, indisputable, no laws or acts involved, US citizenship.

On the other hand we have a huge confusing cacophony of claims. One US parent, and born anywhere – in any other country – and you are IN. The fourteenth amendment (which never amended the Article ll requirement BTW) gives the natural born status to anyone and everyone born in the US. The Naturalization Act of 1790 amended the Article ll requirement by giving children born on foreign soil natural born status, HOWEVER, here is the wording from that Act: “And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: “. We have the question (legal language ) is ” to be considered as natural born Citizens” the exact same thing as “IS a natural born Citizen”? Did it MAKE them into natural born citizens? And recall, the 1790 Act did not amend Article ll either. Should we be considering the Constitution in the way that it was meant at the time it was written, or interpreting it to fit modern situations? Should we overlook the fact that NO Act, Law, or Amendment passed after the Constitution was signed specifically mentions the Article ll restriction?

Then we have the people that say,”What difference does it make? The Constitution is old and doesn’t matter”.

Then we have those who cry because some kid in the distant future won’t be able to dream to be President because he wasn’t born in the US, how unfair! Isn’t the US supposed to be for everyone to come and fulfill their dreams?

Read the multiple attempts made by our politicians to amend the Article ll restriction, read the US State Dept. information on dual citizens. Read John Jays letter to George Washington about the topic.

It was expressly to prevent foreigners from the administrative office and from the Command in chief of the American army. I believe we are more in danger of that in this age than even they were back then.

It is a discussion we should have – as a reasoned people, without insults and character assassination. Grown ass Americans can’t discuss what a fricken phrase meant in the 1700s without childish name calling?

If you look at Blackstone’s explanation of the term “natural born subject” it’s clear that 0bama, McCain, and Rubio are all eligible, but Cruz is not, and nor was George Romney.

It’s perfectly obvious to anyone with an ounce of sense that the framers derived the term NBC directly from the previous term NBS, merely substituting the republican word “citizen” for “subject”. And Blackstone explains that what makes someone a natural born subject of one sovereign or another is the fact that that is whose laws protected him at birth. If you were born under someone’s protection, you naturally owe him loyalty, unless and until he gives you cause to renounce it. Your very nature gives you this duty of fealty. Thus, all that matters is the place of birth, and the only exception he makes is for “the King’s embassadors”. That is because ambassadors and their families are still protected by their own king’s laws, not by those of their host.

So the only question you have to ask is, when Ted Cruz was born, whose laws protected him from harm? If someone had attempted to strangle him in his cot, whose police would have been called to prevent it, and in whose courts, under whose laws, would the criminal have been tried? The answer is Her Majesty Elizabeth II. Thus, under the 18th-century way of looking at things, he naturally owes her a debt of loyalty.

The same applied to George Romney, whose safety at birth was protected entirely by Mexican law, and not by American. No US officer had the power or right to lift a finger in his defense, and had anyone harmed him they would have been tried by a Mexican court.

McCain, on the other hand, was born on a US military base, to US military parents. If anyone had tried anything in the hospital, it would be American MPs who would have rescued him, and the culprit would have been tried before a US military tribunal. The same would apply to an army brat born in Germany today. So McCain falls under Blackstone’s exception; for this purpose his father was in the same position an “embassador”.

Does this make any sense to our 21st-century minds? No, it doesn’t. That’s simply not the way we see the world. But it is the way educated Englishmen (which Americans were) saw things in the 1780s, and that is what the clause clearly meant to the public who voted to ratify it. If we want to change it, we can always amend the constitution, but until then I think we ought to respect it, even though we can be confident no court will enforce it. We shouldn’t ignore it just because we can; we’re better than that.

Now if you were to ask me what we should do with the clause, my first preference would be to repeal it altogether. It’s done nothing to protect us till now, and, as everyone seems to agree, no court will ever enforce it, so what good does it do? But if we feel a need for a similar clause, I’d propose one that didn’t care where a president was born, but instead required him to have lived in the USA for at least 10 of the 12 years between the ages of 4 and 16. Those are a person’s formative years, and the environment in which one spends them has much more effect on ones attitudes and loyalties than wherever one happened to have breathed ones first.

But of course this wouldn’t do anything to exclude someone who grew up in Hawaii surrounded by communists and America-haters; and it would exclude someone whose grew up in American expatriate enclaves, absorbing American culture, and developing the exaggerated patriotism of the expatriate. So I’d rather just get rid of the clause altogether. Until and unless we do, though, I don’t think I could support Cruz for president.

Beside which, I don’t really want him to be president; I’d rather see him spend 10 or 15 years in the Senate, and then go on to a distinguished careeer on the Supreme Court.

    Hawk_TX in reply to Milhouse. | August 14, 2013 at 7:04 pm

    To anyone with a little knowledge it is not at all obvious that the founders derived the term from natural born subjects. British Common law did not work the way most Americans think. It was far more restrictive than is our general understanding of it.

    Firstly, the children of Aliens, born in England were called “Natural born Subjects” (in earlier history they were called “Denizens”) but they were not treated as equals to those born of English Parents.

    They were not allowed to inherit property, they were not permitted to hold any office of public trust, they had to pay special “Alien” taxes, and they were not permitted to hold any rank in the Military.

    They were, in fact, second class citizens, and explicitly so. Sure, they were CALLED “Natural born subjects” (Which mean the King owns them at birth) but they weren’t treated as equal to English Parent born subjects.

    With this in mind it is obvious that the founders could not of derived the concept of a Natural Born Citizen from the British natural born subject.

      Milhouse in reply to Hawk_TX. | August 14, 2013 at 8:51 pm

      This is utter bulldust. Anyone born in the UK, from the Prince of Wales down, was a natural born subject of the king. The children of ambassadors were natural born subjects. It was certainly not a second-class designation.

Well, the real question here is, what is going to befall Professor Jacobson if (I think WHEN) he comes out and says he thinks Cruz is eligible??? Will he be flamed by all the Birthers??? Will they throw copies of The Law of Nations at him, like Arabs throw shoes???

What will happen if he says the two citizen-parents stuff is complete hogwash??? Will Birthers agitate for his removal and replacement by Mario Apuzzo, Esq??? Will he be called a “liberal”, or accused of being on the take, or of being blackmailed with scandalous photos???

That is what I am waiting to see. The howling mob, and how he handles them. Because one thing I have learned is, that the two-citizen parents Birthers are neither rational nor educable.

Squeeky Fromm
Girl Reporter

buckeyeminuteman | August 14, 2013 at 3:10 pm

Saw this letter to the editor online awhile back. The quality of the grammar is shocking considering how stupid this person must be. “Right now, it says that a person has to be 35 years old and be a natural born citizen. Well, that is obviously unfair because there are a great many otherwise qualified people who cannot run for president because their mothers had to have a C-section. But because the Constitution was written a hundred years ago, nobody even thought of the discrimination that would result from a doctor having to deliver a baby in this unnatural way. Now that we Democrats are in control of the government, that’s just one more thing we should change in our drive to make life fair.”

    CachorroQuente in reply to buckeyeminuteman. | August 15, 2013 at 1:26 am

    I read that letter on another blog. It is, in my estimation, an obvious joke. Some say that satire and sarcasm are the lowest forms of wit, but I disagree. Slapstick is clearly lower.

The 14th Amendment never addressed natural born citizens, only “citizens.

John Bingham, considered that father of the 14th amendment stated: “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” – Representative John Bingham of Ohio, a principal framer of the Fourteenth Amendment.

Parents (plural)must be citizens at birth. SCOTUS has referenced the 2 parent definition at least 4 or 5 times.

This is precisely why Obama is ineligible, his father owed allegiance to another sovereign.

    myveryownpointofview in reply to tigercpa. | August 14, 2013 at 3:21 pm

    But you see, don’t you, that he didn’t write that IN the fourteenth amendment, so his saying it after the fact doesn’t make it so. Besides, he’s been dead a long, long time. It’s only the good stuff in the fourteenth amendment that matters. AND it was written specifically to amend Article ll. Because some people these days say so.


    Milhouse in reply to tigercpa. | August 14, 2013 at 3:41 pm

    Bingham did not enact the 14th amendment. 2/3 of each house of Congress, and the legislatures of 3/4 of the states did. He only got one vote in that process, so his opinion on what it means is no more important than anyone else’s.

    In any case, the 14th doesn’t mention NBC, so what he thought of that term’s meaning is less than irrelevant.

      tigercpa in reply to Milhouse. | August 14, 2013 at 4:26 pm

      I agree, the 14th Amendment does not address natural born citizens anywhere within its text.

      Too many people, however, use the 14th amendment to conflate the terms “citizen” and “natural born citizen”.

      They are not the same…if the Founders had intended that the two terms have equal meaning, they would have used one term or the other, not both.

        Milhouse in reply to tigercpa. | August 14, 2013 at 6:59 pm

        Actually they are related. “Citizen” and “natural-born citizen” are obviously not the same term. However, what the 14th amendment actually does is guarantee citizenship to the same people whom the framers called “natural born citizens”. The criteria are the same: born in the USA and under its jurisdiction.

        Consider this: Whether or not Ted Cruz is a natural born citizen, he is definitely not a 14th-amendment citizen. That is to say, Congress could at any time pass a law stripping him of citizenship, and no court could do anything about it. Whereas to take away Rubio’s citizenship would take a constitutional amendment; he could join al Qaeda and he’d still be a citizen.

        Now it’s my contention that this is by design. Rubio is a NBC, and that’s why the framers and ratifiers of the 14th amendment chose to protect his citizenship; Cruz is not, and that’s why they didn’t care to protect it, and left it up to the whims of future Congresses.

Q: How many types of citizenship are there?

A; Two, naturalized and the other kind. There is no third.

Q: What is the other kind?

A: It’s someone who is a citizen but who wasn’t naturalized.

Q: Was Ted Cruz ever naturalized?

A; No.

So it stand to reason that he has the “other kind” of citizenship. You know, the one that makes him eligible to be President.

    Milhouse in reply to fmc. | August 14, 2013 at 7:00 pm

    Q: How many types of citizenship are there?

    A; Two, naturalized and the other kind. There is no third.

    Says who?

      Well, for just one, the SCOTUS sez, as is cited in the Ankeny Decision:

      The United States Supreme Court has read these two provisions in tandem and held that “[t]hus new citizens may be born or they may be created by naturalization.” Minor v. Happersett, 88 (21 Wall.) U.S. 162, 167 (1874).

      In that same case, the Birthers tried the old “Obama’s a citizen but not a natural born citizen” stuff, and the Ankeny Court tossed their argument out the door. And, told them to go read Wong Kim Ark. But, you do have a good grasp of some other points!

      Squeeky Fromm
      Girl Reporter

        Milhouse in reply to SqueekyFromm. | August 14, 2013 at 9:00 pm

        SCOTUS has not said anything of the kind. Of course citizens can be divided up into born or naturalised, but it can also be divided in other ways. One can be a citizen by right of the 14th amendment, or by statute. Cruz’s citizenship, for instance, is entirely by the whim of Congress, which could change its mind tomorrow morning. So one can divide citizenship up that way. One can divide it into several categories, by breaking statutory citizenship out according to which law it’s pursuant to, or which clause in that law; one can distinguish those naturalised overseas by consuls from those naturalised in the USA, or those born abroad to citizens who were born here, from those born abroad to citizens who were themselves also born abroad, but who spent the requisite period here.

        My point is that the idea that there can only be two categories, and therefore if NBC doesn’t mean “naturalized” then it must mean “all citizens who were not naturalized” is just so much ispse dixit. Which is a polite term for bullshit.

          Well, I tend to go with SCOTUS Dixit. From Wong Kim Ark, at page 702:

          “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.”

          Which, when you are contemplating questions like which arise with Cruz, it may be helpful to actually contemplate how a legal challenge to Cruz would be mounted and decided. This tends to focus one’s thoughts. Which the above cite you will find on the bottom of page 8 and then page 9 of my exercise to that effect:

          Squeeky Fromm
          Girl Reporter

          Milhouse in reply to Milhouse. | August 15, 2013 at 2:40 am

          Good grief. That’s what you’re relying on? Read your own quote again: “The Fourteenth Amendment […] contemplates two sources of citizenship, and two only”. Where does it say anything at all about there only being two types of citizenship? It doesn’t; you made it up.

          Now read your quote again, and you’ll see that you just proved the exact opposite of what you wanted to. Go on, read it again: birth and naturalization. “The Fourteenth Amendment […] contemplates two sources of citizenship, and two only: birth and naturalization.” Now tell me which of these two sources Cruz’s citizenship comes from.

          “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.” Now tell me, was Cruz born under the circumstances defined in the Constitution? No, he was not. So where did his citizenship come from? It came “under the authority and in the forms of law”. It came from a statute that existed at the time of his birth, that granted citizenship to anyone born abroad to a US citizen. What does that make him? In the terms of this decision, that makes him a naturalized citizen! He was naturalized at birth, but still naturalized. That is, unless you’re willing to concede a third category. Because he certainly doesn’t fall into the second category in your quote: those whose citizenship comes directly from being “born in the United States, and subject to the jurisdiction thereof”.

          So thank you for proving my point even more strongly than I had done. Thank you for proving that Cruz is not a natural born citizen, and is thus not eligible for the presidency.

          Now you say “it may be helpful to actually contemplate how a legal challenge to Cruz would be mounted and decided”. How would this be helpful? It’s pretty clear that no challenge under the NBC clause would ever succeed. I don’t even think a challenge to a 34-year-old president would succeed; the courts would just say it’s a political question, and thus for Congress to deal with, not for them. Just as the Supreme Court said about the Republican Guarantee clause. But just because we could get away with electing Cruz, does that make it right?


          Hmmm, one thing you said requires addressing:

          “Now tell me which of these two sources Cruz’s citizenship comes from.”

          Naturalization as a natural born citizen by act of Congress. The question is, is that allowable. I think the answer is YES! Which you would have known had you read the 2020 Order. But, if you prefer unstructured legal arguments and analysis. . .

          As far as all those types of citizens, yes I suppose that you can classify citizens as those who like black jelly beans, those that don’t, those that eat only green jelly beans, etc. I suspect the court will just stick with those born as citizens, and those naturalized, or simply natural born and naturalized. But, by all means continue with your taxonomic endeavors if they fulfill some deeper personal need for you.

          Squeeky Fromm
          Girl Reporter

        tigercpa in reply to SqueekyFromm. | August 15, 2013 at 10:47 am

        Ankney was a horribly flawed decision. The Ankeny ruling took signifiocant poetic license in defining “natural born citizen” not close to from original Constitutional meaning and intent.

        The Ark distinguished delineated a child born to one or more alien parents and a child born to citizen parents, noting that only the latter can be described as a “natural born citizen”

        Thus, being a US Citizen is NOT the same as being a “natural born citizen”. NBCs are citizens per natural law; others are statutory citizens.

        Despite your continued conflation, one cannot naturalize as a “natural born citizen”.

          Regardless of what I conflate, the Birther problem is that Courts conflate 14th Amendment “born here and subject to the jurisdiction” persons with “natural born citizens.” Including Wong Kim Ark, to wit, that finding that begins:

          “The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself)[exceptions omitted].”

          Which simple and obvious and finding, and the repeated refusal of the two citizen parents Birthers to acknowledge the same, provides the basis why people think Birthers are either incapable of rational thought, or caught up in some sort of cult religious fervor.

          FWIW, Ankeny is simply a distilled version of Wong Kim Ark.

          Squeeky Fromm
          Girl Reporter

2nd paragraph: Birth Abroad to One Citizen and One Alien Parent in Wedlock

    myveryownpointofview in reply to Jack Long. | August 14, 2013 at 4:49 pm

    Good find. Now, were those laws in effect when the Constitution was signed?

      No. But this one was, from Article I, Section 8 of the Constitution:

      “To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;”

      Which means, that Congress has the right to pass laws on naturalization, which is the making of citizens.

      Squeeky Fromm
      Girl Reporter

        CachorroQuente in reply to SqueekyFromm. | August 15, 2013 at 1:32 am

        It’s surprising to me that I am in total agreement with someone who self-identifies as Squeeky Fromm, girl reporter, but that is how I find myself. It boggles the mind that there are people who believe that there is some sub-set of natural born citizens who are not natural born citizens for the sake of presidential eligibility.

      Now, were those laws in effect when the Constitution was signed?

      I think that is the crux of the matter re: natural born/naturalized.

      A person born in US territory to US parents was a citizen of the US via traditional blood & territory concepts.

      The inception of the USA as a state meant persons born in the new state to citizens of the new state were US citizens. These citizens were citizens before the 14th amendment, or any other naturalization laws, because their citizenship was derived by tradional concepts, not law.

      Residents of the US at the time of inception were made (naturalized?) US citizens. They were not natural born citizens, but their children would be (if born on US soil) .

      The qualifications for president sitpulate ‘a natural born citizen or a citizen of the United States, at the time of the adoption of this Constitution’.

      Those citizens of the US at the time of inception were not natural born since there was no USA state at the time of their birth. They were citizens by law. You could say ‘statuatory citizens’. The constitution, as seen in the stipulations for the presidency, saw natural born as being different from ‘statuatory’ citizens.

      My question would be, does ‘naturalized’ mean a citizenship derived by virtue of the passing of a law. Is John McCain, for example, a naturalized citizen due to his citizenship being derived from a law created after his birth?

      An interesting topic.

    myveryownpointofview in reply to Jack Long. | August 14, 2013 at 4:54 pm

    The Us State Department also sez:

    “However, dual nationals owe allegiance
    to both the United States and the
    foreign country. They are required to ob
    ey the laws of both
    countries. Either
    country has the right to enfo
    rce its laws, particularly if the person later travels

“…According to the State Department, the Cuban government does not recognize the U.S. citizenship of children born in the U.S. to Cuban parents and may subject such individuals who enter Cuba to a “range of restrictions and obligations, including military service” — which could result in an interesting predicament for a purported “natural born” Rubio should he ever travel there.”

Ted Cruz’s mother MET the residency requirements in place to pass US citizenship on to her son at birth, regardless of where she gave birth.

People claiming that Rogers v. Bellei 401 US 815 (1971) apply haven;t actually read the opinion.

The current “US citizenship at birth although born abroad” laws have been modifications to the original law passed as the Act of March 26, 1790 (1 Stat. 103) which declares that:

A. Yes, you CAN be a “natural born citizen” who was born overseas with only ONE US citizen parent, and

B. Congress has set restrictions on that (and it is these restrictions that get modified over time) that, if not met, void the citizenship (despite it being “native born”)

What Rogers v. Bellei stated was that Bellei failed to meet the statutory requirements necessary to avoid having his US citizenship – although “native born” by virtue of his American mother, could be be withdrawn.

In fact, Rogers v. Bellei was (in part) based on an case from 32 years earlier, Perkins v. Elg 307 US 325, 307 US 329 (1939), which stated that a native-born citizen who had acquired dual nationality during minority through his parents’ foreign naturalization abroad did not lose his United States citizenship “provided that, on attaining majority, he elects to retain that citizenship and to return to the United States to assume its duties.” [emphasis mine]

So, “native born” citizens CAN be expatriated for choosing to live abroad after reaching adulthood (which was the case in Rogers v. Bellei), shooting down the whole idea that what happened to Bellei couldn’t have had “native born” citizenship because it was retroactively removed.

Ted Criz is definately a “native born” citizen, according to 223 years worth of statutory law, and at least 74 years of Supreme Court precedent.