PostHeaderIcon Coulter on Cruz

I was really surprised at the amount of time spent on the issue of Ted Cruz’ citizenship in the debate last night. It was taken seriously, and not laughed off as ridiculous by anyone, even Cruz. Yes, he was prepared for the question and had some good one-liners; but his actual defense seemed to be a continuation of his cavalier attitude. He regards it as virtually incontestable settled law, and only being brought up because his poll numbers were rising. I did not get that impression at all.

Trump repeatedly referenced his Harvard Law professor, Laurence Tribe. It happens that he recently penned a Boston Globe editorial, calling Cruz out for his hypocrisy, while declaring him Constitutionally ineligible for POTUS under his own ‘originalist’ position on Constitutional interpretation:

There’s more than meets the eye in the ongoing dustup over whether Ted Cruz is eligible to serve as president, which under the Constitution comes down to whether he’s a “natural born citizen” despite his 1970 Canadian birth. Senator Cruz contends his eligibility is “settled” by naturalization laws Congress enacted long ago. But those laws didn’t address, much less resolve, the matter of presidential eligibility, and no Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a “natural born citizen” is completely unsettled, as the most careful scholarship on the question has concluded. Needless to say, Cruz would never take Donald Trump’s advice to ask a court whether the Cruz definition is correct, because that would in effect confess doubt where Cruz claims there is certainty.

People are entitled to their own opinions about what the definition ought to be. But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an “originalist,” one who claims to be bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.

Do read the whole thing, it is not very long. That was distressing enough to his legal position; but Ann Coulter has delivered a rather devastating legal analysis, which includes several points that, in all my study of the NBC question, I had not encountered before:

If Ted Cruz is a “natural born citizen,” eligible to be president, what was all the fuss about Obama being born in Kenya? No one disputed that Obama’s mother was a U.S. Citizen.

Cruz was born in Canada to an American citizen mother and an alien father. If he’s eligible to be president, then so was Obama — even if he’d been born in Kenya.

That is pretty simple logic. The answer, of course, is that all the birthers and Obot legal eagles alike, fully understood and did not question that a NBC had to be born on American soil. Thus, proving he was born in Hawaii was so important that they were willing to risk creating a phony birth certificate for the purpose.

Forgetting how corrupt constitutional analysis had become, I briefly believed lawyers who assured me that Cruz was a “natural born citizen,” eligible to run for president, and “corrected” myself in a single tweet three years ago. That tweet’s made quite a stir!

But the Constitution is the Constitution, and Cruz is not a “natural born citizen.” (Never let the kids at Kinko’s do your legal research.)

I said so long before Trump declared for president, back when Cruz was still my guy…

I was not aware that she has maintained this view for three years. Don’t forget that she is a lawyer herself, and by no means a stupid one. She is quite capable of doing her own legal research if she is interested in the case:

The phrase “natural born” is a legal term of art that goes back to Calvin’s Case, in the British Court of Common Pleas, reported in 1608 by Lord Coke. The question before the court was whether Calvin — a Scot — could own land in England, a right permitted only to English subjects.

Relying on English common law for the meaning of “natural born,” the U.S. Supreme Court has repeatedly held that “the acquisition of citizenship by being born abroad of American parents” was left to Congress “in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.” (U.S. v. Wong Kim Ark (1898); Rogers v. Bellei (1971); Zivotofsky v. Kerry (2015), Justice Thomas, concurring.)

A child born to American parents outside of U.S. territory may be a citizen the moment he is born — but only by “naturalization,” i.e., by laws passed by Congress. If Congress has to write a law to make you a citizen, you’re not “natural born.”

The concept that the birthright citizenship of those born overseas to an American parent is an act of naturalization by Congressional statute was new to me, and then there is the issue of ‘patrilineal descent’ mentioned by Tribe above:

Because Cruz’s citizenship comes from the law, not the Constitution, as late as 1934, he would not have had “any conceivable claim to United States citizenship. For more than a century and a half, no statute was of assistance. Maternal citizenship afforded no benefit” — as the Supreme Court put it in Rogers v. Bellei (1971).

That would make no sense if Cruz were a “natural born citizen” under the Constitution. But as the Bellei Court said: “Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.” (There’s an exception for the children of ambassadors, but Cruz wasn’t that.)

So Cruz was born a citizen — under our naturalization laws — but is not a “natural born citizen” — under our Constitution.

I keep reading the arguments in favor of Cruz being a “natural born citizen,” but don’t see any history, any Blackstone Commentaries, any common law or Supreme Court cases.

After more analysis, which should be read in full by anyone interested in this subject, she concludes with:

Unless we’re all Ruth Bader Ginsburg now, and interpret the Constitution to mean whatever we want it to mean, Cruz is not a “natural born citizen.”

Take it like a man, Ted — and maybe President Trump will make you attorney general.

Color me impressed by her well-reasoned analysis of the Constitutional legal issues, and her guts to stand up to conventional wisdom and boldly tell it like it is. I also listened to an interview she did with Hugh Hewitt about it. Even though he was trying mightily to discredit her, he (a law professor himself) offered her one more piece of evidence for her legal argument:

Winston Churchill’s mother was an American, born in Brooklyn, NY, although he was born in Great Britain. Yet it took a Presidential Proclamation by JFK in 1963, to make him an honorary citizen of the US. If Ted Cruz is a Constitutional NBC, then so was Winston Churchill, and this would have been an unnecessary redundancy.

It seems that as mentioned above, for overseas births prior to 1934, an American woman married to a foreigner could not confer American citizenship on her children. Subsequent acts of Congress have changed that ‘sexist’ feature of our past Immigration and Nationality policies that favored paternity; but it is well-established beyond question that our Constitution itself cannot be modified by statute.

That, of course, requires a Constitutional Amendment. Therefore, it must be true that the original intent and meaning of the NBC clause, could not have encompassed Cruz’ circumstances of birth. In fact, had he been born before 1934, he wouldn’t even have been an automatically naturalized ‘birthright’ citizen, much less a natural-born one.

Hewitt mentioned that he had asked Cruz about the Churchill question the day before on his show, so I searched and found that interview. I was stunned by Cruz’ answer. He correctly explained that at that point in history, Churchill’s mother could not pass on American citizenship; but that the statutes have since been changed, so that Cruz was himself born an American citizen under the laws of the United States. This shocking statement was true enough; but he is too damned smart a lawyer not to realize that Congress cannot modify the Constitution with a statute.

Thus, his whole position is resting on the hope that the sheeple will believe that the term ‘natural-born citizen’ means, and has always meant, the same thing as ‘born a citizen,’ by whatever rules Congress might from time to time establish. That is simply untrue, and he has to know it. If it were, our Founders would not have bothered to specify that the Commander in Chief be a NBC, while only requiring mere citizenship for all other Constitutional offices. There had to be a meaningful difference in their minds, or they would not have employed this legal term of art. If Winston Churchill could not have come ‘home,’ claimed his birthright citizenship, and run for POTUS, then how can Cruz? If you still think he is a NBC, please explain the difference. 😉 ◄Dave►

 

11 Responses to “Coulter on Cruz”

  • ◄Dave► says:

    For as well as Cruz supporters may have thought he did parrying trumps remarks on his need to get a court to settle the NBC question hanging over his head, Trump still nearly doubled him in the Drudge snap poll on the winner. And, this new Reuters poll can’t have been received well in camp Cruz: “Quarter of Republicans think Cruz’s birthplace disqualifies him for president: poll.”

    WASHINGTON (Reuters) – A quarter of Republicans think White House hopeful Ted Cruz is disqualified to serve as U.S. president because he was born in Canada to an American mother, a new Reuters/Ipsos poll found.

    Republican voters nearly mirror independents and the broader electorate in their belief that Cruz cannot hold the White House, with 27 percent of all voters and 28 percent of independents responding he should be disqualified.

    Cruz, a U.S. Senator from Texas who was born to a U.S. citizen mother and Cuban father in Calgary, Alberta, has brushed aside the attacks about his eligibility as pure politics. But the questions could hamper his ability to rally the broad Republican support he would need to win the party’s nomination to run for the presidency in November’s election.

    Then, let the court cases begin: “Cruz’s ‘Natural-Born Citizen’ Status Tested in Birther Suit“:

    Republican presidential contender Ted Cruz should be disqualified from the race because he isn’t a “natural-born citizen,” a fellow Texan claims in a “birther” challenge filed against the senator in a U.S. court.

    The suit seeks a court definition of the term to clarify whether Cruz — who was born in Canada to an American mother — can or can’t serve if elected.

    “This 229-year question has never been pled, presented to or finally decided by or resolved by the U.S. Supreme Court,” Houston attorney Newton B. Schwartz Sr. said in his 28-page complaint. “Only the U.S. Supreme Court can finally decide, determine judicially and settle this issue now.”

    Claiming that “time is of the essence” because of the rapidly approaching Iowa caucuses and March 1 Super Tuesday primaries, Schwartz asked that the case be expedited for resolution by the nation’s highest court as soon as possible.

    As I keep saying, this isn’t going away, and it now appears that he won’t get away with just flippantly dismissing it as ‘settled law.’ The courts might very well erroneously rule in his favor in the end for political purposes; but I really doubt that this lawyer or anyone else is going to goad the SCOTUS to making such a ruling before the voting begins. This will leave the Sword of Damocles precariously suspended, and surely have a devastatingly negative effect on his ability to ever take the overall lead in the Republican Primary race. ◄Dave►

  • Troy says:

    Yet, if they kick Ted out of the contest after letting the traitor BHO serve 2 terms, what does that say? Seems to me we are trying to have it every way at once.

    I agree that Ted is not strictly a natural born citizen any more than BHO was. But I am leery of a Constitution that applies only to non-Democrats.

    Perhaps Ted can contact whoever made that obviously phony birth certificate for BHO and get himself one showing he was born in VT while his mother was there on vacation. Or something.

    Troy

    • Troy Robinson says:

      Troy, you moron. Don’t you understand that letting Obama get by with repeated trashing of the Constitution has nothing to do with his party affiliation? Simple fact is that he claims to be Black and our Congress is scared to the point of constipation of saying or doing anything that might anger Blacks.

      • ◄Dave► says:

        Exactly!

        Isn’t it interesting how in our youth, the term “black” was thought derogatory and considered offensive by those who wished to be called “colored.” Back then, lite skinned mulattoes often tried to “pass” as white, for the perceived privileges afforded such status. Now, they universally evade acknowledging the “white” component of their ancestry, to proudly proclaim they are “black,” for the perceived (and real) privileges afforded such status. 😉 ◄Dave►

    • ◄Dave► says:

      Coulter’s analysis re: Rogers v. Bellei, seems dispositive to me. If Cruz is actually a naturalized citizen, I do not see how they could not rule him ineligible, if they actually took up the case. Therefore, like all the Obama challenges, they probably would refuse to grant certiorari and ignore it.

      If they were compelled to act by a disagreeable lower court ruling, they could dismiss the Obama issue as entirely different question, because Obama was apparently born on US soil. Thus they could avoid ruling on the “jus sanguinis” (right of blood) component of NBC, while affirming the “jus soli” (right of soil) necessity.

      The real difference here, is that the media wouldn’t touch the issue before Obama was elected, when Hillary’s PUMA organization started the ‘birther’ movement. They have no compunction about skewering Cruz with it, now that it is too late to harm Obama with any new conjecture. He is old news anyway. 🙂 ◄Dave►

  • ◄Dave► says:

    Here is another good analysis of the legal issues raised by Coulter, published by another Constitutional Law professor, in the Washington Post: “Ted Cruz is not eligible to be president,” which makes the case well, in a scholarly business-like manner:

    On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are “such as are born within the dominions of the crown of England,” while aliens are “such as are born out of it.” The key to this division is the assumption of allegiance to one’s country of birth. The Americans who drafted the Constitution adopted this principle for the United States. James Madison, known as the “father of the Constitution,” stated, “It is an established maxim that birth is a criterion of allegiance. . . . [And] place is the most certain criterion; it is what applies in the United States.”

    Cruz is, of course, a U.S. citizen. As he was born in Canada, he is not natural-born. His mother, however, is an American, and Congress has provided by statute for the naturalization of children born abroad to citizens. Because of the senator’s parentage, he did not have to follow the lengthy naturalization process that aliens without American parents must undergo. Instead, Cruz was naturalized at birth. This provision has not always been available. For example, there were several decades in the 19th century when children of Americans born abroad were not given automatic naturalization.

    …drip, drip, drip… or has it become a trickle? How soon the flood? 😉 ◄Dave►

  • Chris says:

    This could get legs. Although if a court does happen to take it up I still believe it will be ultimately adjudicated as I described in a previous comment. They will rule that there are only two ways of obtaining citizenship. Born one or naturalized and that there is no privileged third class of citizen. They won’t split the hair of naturalized at birth because naturalization requires specific acts by someone seeking citizenship. Also splitting that hair would call into question Rubio’s NBC status because even though the 14th amendment confers him citizenship it does not specify “natural born citizenship”. They won’t make the stretch that an anchor baby is a lesser citizen. I bet that would really break Jeb’s heart if they did though. We have nowhere near constructionist courts. Heck half of them probably think the NBC requirement is racist or some sort of micro aggression so look for the most liberal result you could imagine and that’s where we will be.

    I wouldn’t mind SCOTUS putting this to bed once and for all no matter how it comes out. Thing is it’s doubtful the result would be of any benefit. I can’t remember the last time they did anything of actual value for the American people. Ideally I would like to see NBC to mean anyone born of two citizen parents of no other citizenship no matter where on the globe. In this age where travel between continents takes hours instead of months and someones place of residence can be left up to our global corporate masters that’s almost the only way it can be. Geography means little these days. Beyond that the voters have to decide whether someone is worthy. We have really done a good job of that lately right? I think where someone was born is the least of our problems.

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