Michael Gaynor
Fox News' David Asman doesn't realize Ted Cruz is not a "natural born" U.S. citizen
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By Michael Gaynor
February 22, 2016

"Natural born" meant native born as used in the Constitution and any change is supposed to be made by constitutional amendment, not an act of Congress or judicial fiat.

On February 19, 2016, Fox News' David Asman reported that lawsuits challenging Ted Cruz as ineligible to be President on the ground that he is not a "natural born Citizen" are pending.

That was appropriate.

Then Asman ridiculed those lawsuits as without merit based on the Naturalization Act of 1790.

That was absurd.

The "natural born Citizen" requirement is in the Constitution.

No act of Congress can amend the Constitution.

Moreover, the passage and subsequent history of the Naturalization Act of 1790 are evidence that the phrase "natural born" as used in the Constitution meant born in the United States.

The 1790 Act was enacted to provide 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."

The Act doesn't help Cruz, for three decisive reasons:

1. An act of Congress cannot amend the Constitution.

2. Citizenship was transmittable solely by fathers until 1934 and Cruz's father was not a United States citizen until long after Cruz was born.

3. The Act was repealed and replaced by the Naturalization Act of 1795 to delete the words "natural born." The 1795 Act stated 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.

The Acts were exercises of Congress's constitutional power over naturalization, but Congress had not power to amend any of the Constitution's presidential eligibility requirements.

The "natural born Citizen" requirement is applicable only to Presidents and Congress can't change that.

"Natural born" did not mean either born in the United States or born to citizens of the United States.

That's why 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 noted 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." Wikipedia (https://en.wikipedia.org/wiki/Natural-born-citizen_clause).

"Natural born" meant native born as used in the Constitution and any change is supposed to be made by constitutional amendment, not an act of Congress or judicial fiat.

© 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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