Legion Troll
A fine upstanding poster
The most obvious problem concerns the meaning of “natural born” as written into the Constitution, and whether Cruz’s birth in Calgary disqualifies him.
But two equally salient issues have been ignored.
The first is that Cruz’s claim to natural-born status is based on his mother, because his Cuban-born father did become a Canadian citizen, and was only naturalized as an American citizen in 2005.
Rafael Cruz came to the United States on a student visa, and kept his Cuban citizenship until he became a Canadian citizen.
It is a historical fact (and a fact of law) that mothers did not possess the same right fathers did to grant their children American citizenship when the child was born outside of the United States.
The second underlying point commentators have ignored is the deeply troubling legacy of American democracy in allowing discrimination against a sizeable number of its “natural born” citizens while making exceptions for a few whose claim is tenuous at best.
Many students of the Constitution misunderstand why “natural born” was added to the qualification for president. The legal historian Mary Brigid McManamon recently argued in the Washington Post that the term was derived from the common law notion of being born on the “soil” of the national domain.
In the 1780s, “natural born” was a measure of political affection and political loyalty, which only proceeded from a person’s giving tangible evidence of having a genuine commitment to the “soil” and manners of the nation. The phrase, therefore, involved potent sentiment.
To say that “natural born citizen” is settled law is nothing more than a rhetorical ploy. It is not surprising that legal experts Neal Katyal and Paul Clement of Georgetown took to the Harvard Law Review to argue the opposite side from Harvard’s Lawrence Tribe on Cruz’s eligibility, because the same argument has haunted past scholars.
In 1988, long before the Cruz question arose, Jill Pryor wrote in the Yale Law Journal (scrupulously documented) that the question of whether a person born abroad of one American and one alien parent “qualifies as natural born” remains unresolved.
The meaning of citizenship has changed over the course of American history, and yet the Supreme Court has never made a specific ruling on this part of Article II of the Constitution. Most recently, Harvard legal scholar Einer Elhauge makes a strong case against Cruz’s eligibility; but even he does not go far enough to clarify the questionable status of a mother’s right to pass on her citizenship to her children.
As groups within the United States have been alternately granted rights and divested of rights, there has never been a uniform definition of what constitutes a natural born citizen.
In June 1775, the Continental Congress passed a resolution declaring that all living within the United Colonies, under the protection of its laws, were now members of a new government.
Here, the measure of civic belonging was residence, and the purpose of the law was to force a divided population to lean to the rebellious Patriots.
Because the act was considered an insufficient test, George Washington, commander of Continental forces, and other military and state officials, demanded that Americans swear allegiance by taking a loyalty oath. By war’s end, Americans who remained loyal to Great Britain (perhaps 20 percent of the population) were prosecuted as traitors; some were executed, and many had their property confiscated. Citizenship, then, was both voluntary and coerced.
Beyond this legacy, “natural born” reflected another important feature we forget: Patriots had to construct a new identity to justify revolution, to define themselves as other than British.
In 1774, Thomas Jefferson published “Summary View of the Rights of British America,” in which he argued that Americans had fought and spilled their own blood to secure the American continent.
They were people of a distinct lineage––which he repeated in his first draft of the Declaration of Independence. He insisted that repeated wrongs inflicted by the British government offered ample evidence that America’s colonists were no longer brethren of the same blood separated by an ocean. Now they owed their identity to an inbred allegiance on blood-soaked soil.
Thus, when delegates to the Constitutional Convention gathered in 1787, they did not qualify “natural born citizen” merely to protect the presidency from foreign intrigue.
Clearly, they felt that “natural born” meant being born within the boundaries of states but also possessing a deep love of soil and manners unique to the United States. “Natural born” was added because it insured an unwavering identification, presumably ingrained from birth.
http://www.alternet.org/tea-party-and-right/ted-cruz-has-very-real-birther-problem-law-not-settled-history
But two equally salient issues have been ignored.
The first is that Cruz’s claim to natural-born status is based on his mother, because his Cuban-born father did become a Canadian citizen, and was only naturalized as an American citizen in 2005.
Rafael Cruz came to the United States on a student visa, and kept his Cuban citizenship until he became a Canadian citizen.
It is a historical fact (and a fact of law) that mothers did not possess the same right fathers did to grant their children American citizenship when the child was born outside of the United States.
The second underlying point commentators have ignored is the deeply troubling legacy of American democracy in allowing discrimination against a sizeable number of its “natural born” citizens while making exceptions for a few whose claim is tenuous at best.
Many students of the Constitution misunderstand why “natural born” was added to the qualification for president. The legal historian Mary Brigid McManamon recently argued in the Washington Post that the term was derived from the common law notion of being born on the “soil” of the national domain.
In the 1780s, “natural born” was a measure of political affection and political loyalty, which only proceeded from a person’s giving tangible evidence of having a genuine commitment to the “soil” and manners of the nation. The phrase, therefore, involved potent sentiment.
To say that “natural born citizen” is settled law is nothing more than a rhetorical ploy. It is not surprising that legal experts Neal Katyal and Paul Clement of Georgetown took to the Harvard Law Review to argue the opposite side from Harvard’s Lawrence Tribe on Cruz’s eligibility, because the same argument has haunted past scholars.
In 1988, long before the Cruz question arose, Jill Pryor wrote in the Yale Law Journal (scrupulously documented) that the question of whether a person born abroad of one American and one alien parent “qualifies as natural born” remains unresolved.
The meaning of citizenship has changed over the course of American history, and yet the Supreme Court has never made a specific ruling on this part of Article II of the Constitution. Most recently, Harvard legal scholar Einer Elhauge makes a strong case against Cruz’s eligibility; but even he does not go far enough to clarify the questionable status of a mother’s right to pass on her citizenship to her children.
As groups within the United States have been alternately granted rights and divested of rights, there has never been a uniform definition of what constitutes a natural born citizen.
In June 1775, the Continental Congress passed a resolution declaring that all living within the United Colonies, under the protection of its laws, were now members of a new government.
Here, the measure of civic belonging was residence, and the purpose of the law was to force a divided population to lean to the rebellious Patriots.
Because the act was considered an insufficient test, George Washington, commander of Continental forces, and other military and state officials, demanded that Americans swear allegiance by taking a loyalty oath. By war’s end, Americans who remained loyal to Great Britain (perhaps 20 percent of the population) were prosecuted as traitors; some were executed, and many had their property confiscated. Citizenship, then, was both voluntary and coerced.
Beyond this legacy, “natural born” reflected another important feature we forget: Patriots had to construct a new identity to justify revolution, to define themselves as other than British.
In 1774, Thomas Jefferson published “Summary View of the Rights of British America,” in which he argued that Americans had fought and spilled their own blood to secure the American continent.
They were people of a distinct lineage––which he repeated in his first draft of the Declaration of Independence. He insisted that repeated wrongs inflicted by the British government offered ample evidence that America’s colonists were no longer brethren of the same blood separated by an ocean. Now they owed their identity to an inbred allegiance on blood-soaked soil.
Thus, when delegates to the Constitutional Convention gathered in 1787, they did not qualify “natural born citizen” merely to protect the presidency from foreign intrigue.
Clearly, they felt that “natural born” meant being born within the boundaries of states but also possessing a deep love of soil and manners unique to the United States. “Natural born” was added because it insured an unwavering identification, presumably ingrained from birth.
http://www.alternet.org/tea-party-and-right/ted-cruz-has-very-real-birther-problem-law-not-settled-history