Michael Gaynor
Donald Trump's running mate should be indisputably a "natural born" citizen and that disqualifies Ted Cruz
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By Michael Gaynor
February 12, 2016

Congress can naturalize a person, but it can't make that person "natural born" within the meaning of the Constitution's presidential qualifications clause.

Donald Trump recently indicated that Ted Cruz might be his running mate.

That's nice to say about a rival, but it is a bad idea.

A Vice President is a heart beat away from the presidency and must be qualified under the Constitution.

As Trump publicly declared, Cruz is a "natural born Canadian" and the law is not settled that Cruz is also eligible to be a President of the United States.

Last month Michael D. Ramsey, the Hugh and Hazel Darling Foundation Professor of Law and Director of International and Comparative Law Programs at the University of San Diego Law School, wrote an article titled "The Original Meaning of 'Natural Born'" (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712485).

Ramsey was born outside the United States to U.S. citizen parents and emraced the "[m]odern conventional wisdom...that the phrase 'natural born Citizen' in the presidential eligibility clause includes anyone made a U.S. citizen at birth by U.S. statutes or the Constitution."

Ramsey believes that a United States statute made him a "natural born" United States citizen at birth.

That statute made him a United States citizen at birth, but it did not include the word "natural" or purport to make him a "natural born" United States citizen at birth.

Congress has the power to make a person a United States citizen at birth, but Congress does not make natural law.

Ramsey acknowledges that the "issue" is not "settled."

In his article Ramsey pointedly disputed the statement by former Solicitor Generals Paul Clement & Neal Katyal, in "On the Meaning of 'Natural Born Citizen,'" 128 HARV. L. REV. F. 161 (2015), that "the relevant materials clearly indicate ... that the original meaning of the phrase 'natural born Citizen' includes persons born abroad who are citizens from birth based on the citizenship of a parent."

Ramsey stated that such "conventional wisdom rests on surprisingly thin scholarly foundations and faces daunting textual and historical challenges."

Ramsey continued: "If anyone born a U.S. citizen is eligible to the presidency, the word 'natural' in the eligibility clause is superfluous. To give it meaning, there should be some 'born' citizens who are not 'natural born.' Further, in general in eighteenth-century legal language, natural meant the opposite of 'provided by statute.' Natural law was the opposite of positive law; natural rights were rights that predated codification. The most obvious meaning of 'natural born Citizen' thus is not a person who claims citizenship from a statute, but rather a person whose citizenship comes from the natural state of things."

Nevertheless, Ramsey concluded that he's eligible to be President, based on an interpretation of "natural born" that he acknowledged is not the "obvious" one and that makes the phrase "superfluous."

Ramsey's basis for his conclusion: "The framers knew that in English law 'natural born' had a core meaning of birth within sovereign territory, but was subject to statutory expansion to include those born overseas with what parliament considered a sufficient connection to the nation. The best reading of the clause is that this is the constitutional meaning as well."

Ramsey:

"...careful review of the phrase's history suggests that the conventional view is the best one, although the argument is more difficult and complex than the conventional view acknowledges. The decisive fact about the phrase 'natural born' is that it had commonly appeared in English statutes throughout the late-seventeenth and eighteenth centuries. In traditional English common law, 'natural born' (applied to 'subjects') meant (with minor exceptions) born within English territory. However, beginning in 1677, and continuing up to the framers' time, parliament had expanded that definition by statute to include some persons born abroad with English parents. Crucially, parliament had not merely extended the rights of natural born subjects to these new categories, but had declared that persons in the new categories were natural born subjects. As Blackstone put it, children so designated by statute 'are now natural born subjects themselves, to all intents and purposes, without any exception.'"

"This approach is strongly reinforced by the Constitution's grant to Congress of the power to 'establish an uniform Rule of Naturalization.' The English statutes declaring certain categories of people to be natural born, even if not born in England, were called naturalization acts. Thus eighteenth-century readers would understand the naturalization power to include the power (within certain limits) to define the scope of 'natural' birth. As a result, somewhat counter-intuitively, 'natural' born does at least to some extent depend on statutory law.

"Notably, this reading (and only this reading) supports the modern view that all persons defined as citizens at birth by statute are 'natural born.' In particular, the modern citizenship statute defines most persons born abroad with a U.S. citizen mother and a non-citizen father to be U.S. citizens at birth. That status is not consistent with the meaning of 'natural born' in English common law or in law-of-nations theory; nor was it the case under late-eighteenth-century English statutory law (which gave those born abroad 'natural born' status only if their fathers were natural born). But so long as we see that 'natural born' was subject to statutory expansion under the naturalization power, the fact that modern birthright citizenship does not accord in all particulars with eighteenth-century birthright citizenship is not problematic.

"In sum, as conventional wisdom holds, the best reading of the original meaning of the eligibility clause is that any person defined as a citizen at birth by the Constitution or a statute is eligible to the presidency. The proof, however, is much more difficult than conventional wisdom supposes."

To be sure, the "proof" to which Ramsey referred "is much more difficult than conventional wisdom supposes."

It is NOT proof, because the "conventional wisdom" is wrong.

Ramsey's reading gives undue deference to Congress and does not give natural law its due.

In discerning the meaning of the Constitution's "natural born Citizen" clause, the first words of the Declaration of Independence should be appreciated.

"When in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."

The American Revolution was made by people who prioritized natural law and "nature's God" above king and acts of Parliament and valued limited government with checks and balances.

When the Constitution was drafted and adopted, citizenship was based on natural law and transmissible only by fathers.

That was not changed until Congress passed a law in 1934 making citizenship transmissible by mothers.

Who believes that the Framers did not envision that a person born in Canada to a father who is not a United States citizen would be made constitutionally eligible to be President of the United States merely by an act of Congress making a person born abroad to a United States citizen mother a United States "citizen at birth."

Congress can naturalize a person, but it can't make that person "natural born" within the meaning of the Constitution's presidential qualifications clause.

Under Ramsey's reading the Constitution's presidential qualifications may be changed by an act of Congress instead of only by a constitutional amendment.

Article II, Section 1 of the Constitution states: "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."

Is Congress empowered to change the age and residence requirements?

No.

Neither is it entitled to change the meaning of "natural born" when the Constitution was drafted and adopted.

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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