Michael Gaynor
Cruz's natural born U.S. citizenship claim is bogus, so a Trump lawsuit against him would be in order
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By Michael Gaynor
February 19, 2016

Ted Cruz is a terrific debater and lawyer, but he is not eligible to be President of the United States.

The Constitution's "natural born Citizen" clause was included for a purpose.

As stated in Wikipedia (https://en.wikipedia.org/wiki/Natural-born-citizen_clause):

"St. George Tucker, an early federal judge, wrote in his 1803 edition of William Blackstone's Commentaries on the Laws of England, perhaps the leading authority for the delegates to the Constitutional Convention for the terms used in the Constitution, that the natural born citizen clause is 'a happy means of security against foreign influence' and that '[t]he admission of foreigners into our councils, consequently, cannot be too much guarded against.' In a footnote, Tucker wrote that naturalized citizens have the same rights as the natural-born except 'they are forever incapable of being chosen to the office of president of the United States.'

"In a speech before the Senate, delegate Charles Cotesworth Pinckney gave the rationale, 'to insure experience and attachment to the country.'

"Professor Akhil Amar of Yale Law School indicated that there was also a perception that a usurper from the European aristocracy could potentially immigrate and buy his way into power."

To be sure, there are plenty of naturalized citizens' with as much or more "experience and attachment to the country" than natural-born citizens.

Cruz seems to be among them, but that does not make him eligible to be President, because the Constitutional qualification chosen is "natural born Citizen" and Cruz is not a natural born United States citizen.

Wishing doesn't make it so.

Perhaps this hypothetical will help readers understand why the words "natural born" appear in the Constitution.

Assume that a 44 year old born in London to a mother born in Virginia and the younger brother of Lord Cornwallis who had attended Eton and Oxford and moved to the United States in 1816 (just after the American victory at New Orleans in the War of 1812), became very successful and aspiring to run for President in 1832.

Would he be eligible to be President?

No. He would meet the age and residence requirement, but he would not meet the "natural born Citizen" requirement. He would be a natural born British subject.

Canadian born Ted Cruz has renounced his Canadian citizenship, but he does not meet the "natural born Citizen" requirement.

Nevertheless, Cruz recently declared that a lawsuit by Donald Trump to declare Cruz ineligible to be President of the United States would be "frivolous."

Unfortunately for Cruz, such a lawsuit would not be frivolous.

Trump would have standing to sue, because he is a serious candidate for the Republican presidential nomination and Cruz is competing against him and claiming to be eligible to be President.

Such a lawsuit should be successful because the Constitution requires a President to be a "natural born Citizen" of the United States.

At birth Cruz was a natural born citizen of Canada, but not of the United States, and a naturalized United States citizen.

Cruz cannot claim birthright citizenship based on being born in the United States, because he was not born in the United States, or argue that he should be deemed eligible because his father was a United States citizen when he was born, because his father was not a United States citizen when he was born.

Cruz's only argument is that he is eligible thanks to his mother.

The people who drafted and adopted the Constitution would find that frivolous, because mothers could not transmit United States citizenship to their children until a statute was enacted in 1934.

The Naturalization Act of 1790, on which Cruz futilely relies, does not help him.

The Act did state that "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."

But, (1) no act of Congress can amend the Constitution, (2)Cruz was not born while the 1790 Act was in effect, (3) Cruz's father was not a United States citizen when Cruz was born and (4) the 1790 Act was repealed by the Naturalization Act of 1795 and the 1795 Act removed the characterization of such children as "natural born," stating that "the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States" while retaining the same residency restrictions as the 1790 act.

As explained in a 2016 Congressional Research Service report (Maskell, Jack (January 11, 2016). "Qualifications for President and the 'Natural Born' Citizenship Eligibility Requirement"):

"Although the eligibility of U.S. born citizens has been settled law for more than a century, there have been legitimate legal issues raised concerning those born outside of the country to U.S. citizens. From historical material and case law, it appears that the common understanding of the term 'natural born' in England and in the American colonies in the 1700s included both the strict common law meaning as born in the territory (<="" i="">), as well as the statutory laws adopted in England since at least 1350, which included children born abroad to British fathers (jus sanguinis, the law of descent). Legal scholars in the field of citizenship have asserted that this common understanding and legal meaning in England and in the American colonies was incorporated into the usage and intent of the term in the U.S. Constitution to include those who are citizens at birth."

Unfortunately for Cruz, even if the phrase "natural born Citizen" as used in the Constitution is interpreted to include those jus sanguinis statutes in effect at the time, it would not help Cruz, because his United States citizen parent was his mother instead of his father.

Cruz has the distinction of being the first Canadian born presidential aspirant to have his eligibility questioned, but it is noteworthy that President Chester Arthur's eligibility was questioned because it was suspected that he had been born in Canada instead of the United States. Arthur was born in Vermont to a Vermont-born mother and a father from Ireland, who was naturalized as a U.S. citizen until fourteen years after Arthur was born.

Arthur was a natural born United States citizen by virtue of his place of birth. Neither of his parents transmitted United States citizenship, his father because he did not have it himself and his mother because the law did not allow it.

Wikipedia (https://en.wikipedia.org/wiki/Natural-born-citizen_clause):

"Chester A. Arthur was rumored to have been born in Canada. His mother, Malvina Stone Arthur, while a native of Berkshire, Vermont, moved with her family to Quebec, where she met and married the future president's father, William Arthur, on April 12, 1821. After the family had settled in Fairfield, Vermont, William Arthur traveled with his eldest daughter to East Stanbridge, Canada, in October 1830 and commuted to Fairfield on Sundays to preach. 'It appears that he traveled regularly between the two villages, both of which were close to the Canadian border, for about eighteen months, holding two jobs,' which may well explain the confusion about Arthur's place of birth, as perhaps did the fact that he was born in Franklin County, and thus literally within a day's walk of the Vermont – Quebec border.] This was never demonstrated by his Democratic opponents, although Arthur Hinman, an attorney who had investigated Arthur's family history, raised the objection during his vice-presidential campaign and after the end of his presidency, published a book on the subject."

Chester Arthur was eligible, because he was born in the United States.

Ted Cruz is a terrific debater and lawyer, but he is not eligible to be President of the United States.

© Michael Gaynor

 

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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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