Superman and Terminator
A commenter by the name of “PoorCitizen” left the following statement in response to the very interesting discussion re: Natural Born Citizen and Ted Cruz as part of a Talking Point Memo blog post entitled: Centuries-Old English Law May Hold The Answer To Ted Cruz’s Birth Issue, which you should read too.
“Why should American constitutional law in the 21st century depend on what English law from the 1300s?”
The reason is fairly simple to understand. If the words in the Constitution are to mean anything at all, then they must be at least they must be tied to the spirit and context in which they were originally used. This is true, whether you believe in a very restricted “original” interpretation of the meaning of the words in the Constitution or whether you believe in an interpretation of the meaning of the words that allows their meaning to evolve in the context of their “contemporary” legal meaning.
The specific requirements for eligibility for the US Presidency don’t simply demand that a person be a citizen, they specifically require a person to be a “natural born” citizen. The meaning of this common law term dates back to English common law and it is evident that the meaning of the term, as is amply evidenced in virtually all English Common Law as well as in the letters and discussions surrounding the writing of the US Constitution indicate that “natural born” refers specifically to the jurisdiction and sovereignty of the territory where a child is born and not to that of where his parent or parents were born.
There has been much talk about this being an “unsettled” matter of law. However, this is not true, since the US Supreme Court did rule specifically on the question of “natural born” in a case US vs Ark 1898 and specifically researched the meaning of “natural born” in the context of Common law to establish its meaning. After much reference to the meaning of the term in both English Common Law and with respect to its legal meaning at the time the Constitution was written, the Court ruled that “natural born” meant precisely that a person is considered “natural born”, if and only if, they were born within the sovereign territory of the United States. In fact, this is precisely why Mr. Ark won his case, even though both of his parents were Chinese and not Americans. Mr. Ark was born in San Francisco.
It should be noted that in US vs Ark, both the majority and minority opinions came to the same conclusion that “natural born” means specifically that a person is born within the jurisdiction or sovereignty of the United States. It is clear that had Mr. Ark not been born within the jurisdiction of the United States he would have lost his case and would have been deported as the US was trying to do.
It is further worth noting that the Court in US vs Ark also made specifically clear that the US could not simply pass a law, at that time the Chinese Exclusion Act, and use it to alter the meaning of “natural born”. They specifically referenced the fact that since that term was used in the Constitution, its meaning could not be altered by statute alone but would require a Constitutional amendment. The Court ruled that no law can amend the Constitution of the United States and any law that the government may attempt to use to do so is unconstitutional in its application. Congress has the power to naturalize, but it does not have the power to amend the meaning of the constitution via statute.
Legally, since the ruling in US vs Ark remains precedence, Mr. Cruz is ineligible to hold the office of the Presidency because he was born in Calgary, Canada as his Canadian birth certificate clearly demonstrates. He remains in ineligible under US law, at least until he gets a constitutional amendment passed permitting him to do so or he can provide proof that US State Department specifically claimed US jurisdiction over his birth. So far Mr. Cruz has not provided that critical piece of evidence.
The present court may attempt to reverse the precedent. However, to do so it will clearly have to waive the original meaning of the term in the Constitution, previous Supreme Court precedent, and more than 500 years of Common Law to do it.
(click here to continue reading Discussion: Centuries-Old English Law May Hold The Answer To Ted Cruz’s Birth Issue – TPM Article Topics – The Hive.)
The Goon in Chinatown
Since I’d recently read about the 1898 decision, United States vs. Wong Kim Ark, here’s part of the ruling in that case for reference:
The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873 in the city of San Francisco, in the State of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China, and during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to-wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence, and neither he nor his parents acting for him ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him
Page 169 U. S. 653
therefrom. In 1890 (when he must have been about seventeen years of age), he departed for China on a temporary visit and with the intention of returning to the United States, and did return thereto by sea in the same year, and was permitted by the collector of customs to enter the United States upon the sole ground that he was a native-born citizen of the United States. After such return, he remained in the United States, claiming to be a citizen thereof, until 1894, when he (being about twenty-one years of age, but whether a little above or a little under that age does not appear) again departed for China on a temporary visit and with the intention of returning to the United States, and he did return thereto by sea in August, 1895, and applied to the collector of customs for permission to land, and was denied such permission upon the sole ground that he was not a citizen of the United States.
It is conceded that, if he is a citizen of the United States, the acts of Congress, known as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution,
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
…
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
(click here to continue reading United States v. Wong Kim Ark :: 169 U.S. 649 (1898) :: Justia U.S. Supreme Court Center.)
If you have some time, the US v. Ark case has lots of citations and references. I confess I did not read it all, just enough to get the gist.
And as I’ve said more than once, until the Supreme Court takes up this case and settles what specifically the phrase “Natural Born Citizen” means, speculation will continue. Ted Cruz is a citizen of the United States, but does he meet the additional requirements to run for president? Who knows?