Michael Gaynor
Judge Masin cannot make Ted Cruz a natural born US citizen
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By Michael Gaynor
April 15, 2016

Judge Masin did not note it in his opinion, but tt was not until 1934 that mothers were empowered to transmit United States citizen to their children. The "contemporary understandings of equal protection" relied upon by Judge Masin are not relevant to what "natural born Citizen" as used in the Constitution means.

World Net Daily reported as follows (www.wnd.com/2016/04/n-j-court-declares-cruz-eligible-for-white-house/):

"A New Jersey judge has declared Sen. Ted Cruz is constitutionally eligible to be president of the United States.

"After considering the arguments of various scholars, Judge Jeff S. Masin wrote in his opinion Tuesday that while there can be no certainty as to what the founders meant by 'natural born citizen,' he concluded 'that the more persuasive legal analysis is that such a child, born of a citizen-father, citizen-mother, or both, is indeed a "natural born Citizen" within the contemplation of the Constitution.'"

Judge Masin acknowledged that the final determination of the issue still awaits a Supreme Court decision and that "it must be acknowledged that the arguments against finding a child born outside the United States to a non-diplomat or non-military citizen of the United States are not facetious and the issue can never be entirely free of doubt, at least barring a definitive ruling of the United States Supreme Court."

Judge Masin relied on a 1898 Supreme Court Wong Kim Ark, in which the Fourteenth Amendment Amendment and English common law resulted in a determination that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

However, the Constitution distinguishes between United States citizens and natural born United States citizens.

Law professor Victor Williams and others challenged Cruz's certificate of eligibility to be on the New Jersey ballot.

They argued that Cruz's Canadian birth certificate on public record "incontrovertibly proves, that he was, and is, a natural-born Canadian" and that "[i]t simply a physical impossibility for him to be both a natural-born Canadian and a natural-born American."

Cruz's lawyers argued that it is "inconceivable that the Framers intended to exclude a U.S. citizen at birth from holding the office of president, simply because of where he or she happened to be born."

What IS inconceivable is that the Framers would have considered Cruz to be a natural born United Statesw citizen. They would not have considered him a United States citizen.

Why?

Because Cruz's father was not a United States citizen when Cruz was born and mothers could not transmit their United States citizenship until 1934.

Thanks to his mother, Cruz became a United States citizen AT birth under a federal naturalization statute. He is a naturalized United States citizen who was naturalized at birth, but not by birth in the United States.

Politicians often try to be all things, but Cruz is not both a natural born and naturalized United States citizen and the Canadian citizenship which he did not renounce until after becoming the first Canadian elected to the United States citizen is the kind of problem the "natural born Citizen" requirement was included to avoid.

Judge Masin noted "that the parliamentary legislation recognized in Blackstone and presumably known to the founders that declared children born abroad to English-subject fathers to be natural born subjects did not provide that the children born abroad whose mother was the sole English subject parent were 'natural-born.'"

Judge Masin conceded that "an originalist interpretation 'would almost certainly' see the father-only distinction as one that the Supreme Court would today uphold." Nevertheless, he opined: "such an outcome seems to be at complete odds with contemporary understandings of equal protection as it is hard to discern any rational basis that would favor the child of father over child of the mother. If the distinction is to be upheld, and only father-citizen children born abroad and not those with only a mother-citizen parent are to be found to fit the definition of 'natural born' such a conclusion must lie with another authority. Here, the equal protection element of the Constitution would properly override any common law based discrimination."

That analysis is fundamentally flawed.

Judge Masin did not note it in his opinion, but It was not until 1934 that mothers were empowered to transmit United States citizen to their children." The "contemporary understandings of equal protection" relied upon by Judge Masin are not relevant to what "natural born Citizen" as used in the Constitution means. No evidence is cited for the proposition that the Fourteenth Amendment was intended to change the understanding of what "natural born Citizen" as used in the Constitution meant, because the Fourteenth Amendment was NOT intended to amend the Constitution's"natural born Citizen requirement." Accordingly, the Fourteenth Amendment should not be misused based on "contemporary understandings of equal protection."

Judge Masin's opinion is available at www.wnd.com/2016/04/williams-v-cruz-decision/.

© 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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