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Iran nuke deal and Ted Cruz eligibility have something in common

Iran nuke deal and Ted Cruz eligibility have something in common

Namely, my appearance on the Larry O’Connor Show.

On March 27, 2015, I appeared in studio on Washington’s Drive at Five hosted by Larry O’Connor on WMAL 630 in D.C.

We touched on two completely unrelated, but interesting, subjects: Obama’s plan to make an end run around Congress to the U.N. Security Council to sign a nuke deal with Iran, and claims that Ted Cruz is not eligible to be President because he was born in Canada.

For background on why Cruz is eligible, you can read my September 3, 2013 post, natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz. But it’s 11,102 words, so it might be easier for you to listen to this audio.

UPDATE 1-14-2016 — Towards the end of this segment, at the 7:30 mark, I respond in the affirmative to a question about whether Obama would have been a natural born Citizen because his mother was a Citizen. I was wrong. Ilya Shapiro has the explanation why Cruz and Obama were not in the same position:

So why all the brouhaha about where Obama was born, given that there’s no dispute that his mother, Ann Dunham, was a citizen? Because his mother was 18 when she gave birth to the future president in 1961 and so couldn’t have met the 5-year-post-age-14 residency requirement. Had Obama been born a year later, it wouldn’t have mattered whether that birth took place in Hawaii, Kenya, Indonesia, or anywhere else. (For those born since 1986, by the way, the single citizen parent must have only resided here for five years, at least two of which must be after the age of 14.)


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Doug Wright Old Grouchy | March 27, 2015 at 11:42 pm

Ok, El Jefe El Supremo The Messiah Obama I, has the UN approve, ratify, whatever, the treaty, agreement, with Iran regarding the Nuclear Bomb, then the next president of the USA should tell the UN, goodbye, so long, get out of town, go live in the sticks of Geneva or wherever, we, the USA, resign our membership in the UN, leave, go, scat, begone.

IT sounds like the professor is saying that by our membership in the UN, we’ve agree to abide by its resolutions, thus then we leave that sorry sad sack of clowns to wither on whatever vine it wishes to use.

Now, that might cause the natting nabobs of negativity lots of pain but so what.

    It would, indeed. Which is one of the primary reasons in support of doing it.

    It should have been done sometime back, when the UN began to be more of a danger than an opportunity to advancing American interests. Is is proven another failed experiment at straining for utopia.

    As it is now, it is really a dirty joke, a nest of intrigue housed in our own breast, and an outrageous expense, especially in light of any cost/benefit ratio.

    I imagine that Nuevo Ork City would have a collective rolling cat-fit. I mean, THINK of the cultural loss alone!!! Fine. If they wanna keep it and pay the bills, let ’em.

ScottTheEngineer | March 28, 2015 at 7:49 am

The hyperlink to the older post doesn’t work. It says I’m not allowed to edit the post.
I wonder, if I could edit it what would I write?

Professor Jacobson, I respectfully disagree with your analysis that Ted Cruz is a Natural Born Citizen. The simple fact that it requires 11,102 words to explain Ted Cruz’s eligibility tells me that you spinning a tortured legal web that ignores the original intent. If the Constitution needs to be amended, do it the way the Founders intended, through reasoning together with logic and debate, not through twisting the meaning of this and that to arrive at the desired outcome.
This insistence that the debate is over and Ted Cruz is eligible is much like the climate change crowd claiming the debate is over and anyone who does not agree needs to just shut up.
I’m being told by many people that legal scholars have looked into this and they believe that Ted Cruz is eligible. Well, I have two things to say about that, ask these legal scholars’ wives if they are always right and with every legal argument before the courts, 50% of the legal scholars are wrong.
You only need to consider that since 2003 Congress has tried 10 times to put forward a Constitutional Amendment or legislation to define or change the Natural Born Citizen clause. All have died. Why?


1) As stated by Rep Issa (CA) in an October 5, 2004 Senate Judiciary Hearing on “The Natural Born Citizen Act” – he states, “However, to Senator Nickles, in contrasting the two major differences between his legislation and your constitutional legislation, I disagree with the Senator’s theory that we can take care of this by legislation. We live in an era–it was mentioned perhaps slightly a minute ago–in which anything can be challenged and taken to nine men and women on the Supreme Court. Any law that we pass here is open to challenge at the Supreme Court. So we could pass a law today allowing someone to
be President that previously was in doubt. That would include, obviously, those born abroad of U.S. citizens, such as Senator McCain, who was born in an area that is no longer the United
States. It was the United States when he was born, the Panama Canal District; today it is not.
That doubt certainly could be challenged after an election, challenged to the U.S. Supreme Court. And the U.S. Supreme Court would not have the ability to say: Do we go with the will of the people? They would have to say: What is the Constitution and what does it say?
So I think that as much as we could envelop for feel-good purposes more and more people into the system of being defined as natural born, I do not believe that it would exempt a
Presidential candidate, if elected, from being open to that challenge. And the possibility certainly exists that someone could be elected President and their Vice President could be sworn in because the men and women of the Supreme Court would have to interpret the Constitution as unamended rather than
amended by simple legislation or statute. And I think that is the most important reason that this constitutional amendment is necessary.”

According to Mr. Issa, any legislation changing the original intent of Natural Born Citizen would be contested in the Supreme Court, and apparently Congress is not confident they could win that battle.

2) As stated by Senator Craig (Idaho) in an October 5, 2004 Senate Judiciary Hearing on “The Natural Born Citizen Act” – he states, “I have traveled to 40 States with a single amendment in mind and visited with those legislatures. It is a near impossible task. It is a hurdle so high that it is near impossible. And it must be an issue that is overwhelmingly popular and obvious on its face to the American people, or it will not happen.”

Apparently, politicians fear a Supreme Court battle if changed legislatively and fear voters and the states will not allow it to be changed by constitutional amendment. Therefore, I contend that there are political constituencies at work to change the meaning of Natural Born Citizen out of the sight and reach of the “common rubes” who vote. Using tortured legal analysis (e. g. 11,102 words to define 3 words in the Constitution) and feigned ignorance that the Founders intentionally put a heavy emphasis on the Office Of President to be born with no dual allegiances or undue foreign influence with citizen parents where the child’s citizenship and allegiance “naturally” follows the parents, politicians would rather quietly usurp the Constitution with “scholarly” legal help. In my investigation I kept seeing from politicians and witnesses that the current definition of natural born citizen is, un-American, an artifact from another time, outdated, unfair barrier, we are a Democracy, the Constitution is archaic, and we don’t have to worry about undue foreign influence anymore. THESE ARE THE EXACT PEOPLE we need to protect the Constitution from!

In short,
1) The meaning of Natural Born Citizen is controlled by the definition at the time of its writing, not at later interpretations 200+ years after the term was penned.
2) The Founders were well aware of Vattel’s Law of Nations and his treatise is mentioned in Article 1, Section 8, Clause #10 describing Congress’ power “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations”
3) Vattel’s definition of a Natural Born Citizen from Book 1, Chapter 19 – Law of Nations “The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.” ……. “I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.” (How’s that Barack Obama Presidency workin’ out for ya’?)
4) There can really be no coincidence that the Founders used the term Natural Born Citizen outside and/or separate from Vattel’s definition. There is no evidence that Natural Born Citizen existed at the time anywhere other than in Vattel’s treatise Law of Nations. The reason there are no writings or disputes about the definition of Natural Born Citizen between the authors of the Constitution can only mean that the circle of men addressing the issue in the Constitution all had the same definition. We have no arguments today about what pizza is because everybody knows what pizza is, there is no dispute.
5) The 14th Amendment does not address or change the definition of a Natural Born Citizen. It addresses who are Citizens by Birth, to which I agree includes Ted Cruz. Natural Born Citizen is a unique subset of Citizen by Birth. Conversation with those on the other side state Ted Cruz is eligible because his mother is a U.S. citizen. She is a U.S. citizen and Ted Cruz is also a U.S Citizen, but he does not meet the conditions set out by the definition of a Natural Born Citizen.
6) The only legislation to address Natural Born Citizen was the Naturalization Act of 1790 that addressed children born to citizens serving abroad (as opposed to living abroad of one’s own volition). This may be unconstitutional on its face, but this legislation was enacted before the Supreme Court took on the power of Judicial Review in 1801 in Marbury v. Madison. It appears this legislation only extended to military and political citizens serving abroad at the pleasure of the United States and who either had no control over their serving abroad or wished to serve their country a various locations outside the border of the United States and thus retaining their sole allegiance to their home country through their service.
In summary, the Constitution sets the requirements for President and Natural Born Citizen is defined by Vattel’s in Law of Nations. Any change to the Constitution cannot be made by legislation alone but only by a constitutional amendment.
No constitutional amendment has been proposed and ratified by the States. Since no constitutional amendment has been ratified to change the definition of Natural Born Citizen, the definition remains as it was penned in 1787. The definition is found in the commonly referenced Law of Nations, a treatise written by Emer de Vattel.
Ted Cruz was born on December 22, 1970 in Calgary, Canada with parents Elizabeth Darragh Wilson, a U.S. citizen and Rafael Bienvenido Cruz, a Cuban citizen that later became a U.S. citizen in 2005 (35 years after Ted Cruz’s birth.)
At Ted Cruz’s birth,
1) His father was NOT a U.S. Citizen
2) His birthplace was outside the boundaries of the country
Therefore Ted Cruz meets neither of the core requirements of a Natural Born Citizen as it was defines at the time the Constitution was written and ratified and that definition still holds for there has been no legal change to its meaning.
If the Constitution needs amending, don’t violate it like a Liberal, gain political support for an amendment to change it.
P.S. I did this in 1,535 words.

In the above post– one correction.

Where I stated “You only need to consider that since 2003 Congress has tried 10 times to put forward a Constitutional Amendment or legislation to define or change the Natural Born Citizen clause.”

The date should read “since 1975”