Well, Cornell Law Prof. William Jacobson finally weighed in on Marco Rubio and Ted Cruz’s presidential eligibility and as expected, the Birthers are going to need a great big group hug. Because they are in some major emotional pain! Here are some excerpts from his long analysis:
The key to understanding why I reach that conclusion that Rubio, Jindal and Cruz are “natural born Citizens” requires understanding the problem.
There are strong arguments in favor of Rubio, Jindal and Cruz each being a “natural born Citizen” as that term most reasonably can be understood through its plain text because they became citizens by birth. Their “natural born Citizen[ship]” also is consistent with the concepts, respectively, of citizenship by birth place (Rubio, Jindal) and parentage (Cruz), from which the term “natural born Citizen” is believed to derive historically.
and significantly, he finds there is no two citizen parents requirement:
8. There Is No Requirement That Both Parents Be Citizens
One common phrasing of objections to Rubio, Jindal and Cruz being deemed “natural born Citizens” is that, regardless of where they were born, both parents would have had to be citizens.
That argument is devoid of almost any support. The text does not say so. There is no demonstrable evidence that is what the Framer’s intended, or that’s how the term was commonly understood at the time of drafting. Such a requirement also is not found in the almost contemporaneous, or even in British law which (as described in the section above) was confused and changed over time, but typically followed the father’s lineage for children born abroad. See also discussion of Supreme Court cases below.
and, in his conclusion at 14:
A reasonable reading of the plain text of the Constitution supports Rubio, Jindal and Cruz being “natural born Citizen[s]” because they were citizens by birth. There is no clear, demonstrable intent otherwise from the Framers or clear, commonly understood use of the term to the contrary at the time of drafting the Constitution. The British term “natural born Subject” as well as concepts of “natural law” were not clearly relied upon by the Framers, and are in themselves not clearly contradictory to this plain reading of the text.
The burden should be on those challenging otherwise eligible candidates to demonstrate through clear and convincing historical evidence and legal argument why such persons should be disqualified. That has not happened so far, and if two hundred years of scholarship is any indication, it never will happen.
The ultimate arbiter on the issue likely is to be voters, not Supreme Court Justices.
It is for these reasons that I believe Marco Rubio, Bobby Jindal and Ted Cruz are eligible to be President.
Here is the link to his findings:
One thing I disagree with Jacobson about is his treatment of the Wong Kim Ark case. I do not think he read the case enough to realize that the Court made separate findings throughout the seven part decision which takes its statements on natural born citizenship out of the “dicta” category. I will do a separate article on that. However, he did dispose of the Emer de Vattel nonsense. He also speared Leo Donofrio a few times.
It’s a good read!
Note 1. The Image. This is from, The Ghost Busters TV show, about which Wiki says:
The Ghost Busters was a live-action children’s television series that ran in 1975, about a team of bumbling detectives who would investigate ghostly occurrences. Only 15 episodes were created.
This series reunited Forrest Tucker and Larry Storch in roles similar to their characters in F Troop. Tucker played Jake Kong (his first name is never actually given in this series), and Storch played zoot suit-wearing Eddie Spencer. The third member of the trio was Tracy the Gorilla, played by actor Bob Burns (credited as Tracy’s “trainer”).
The series was unrelated to the 1984 film Ghostbusters (though Columbia Pictures did pay Filmation for a license to use the name).
Each episode would always begin with Spencer and Tracy stopping at a convenience store to pick up the tape recording (recorded by co-executive producer Lou Scheimer) that explained their mission for the episode, in a parody of Mission: Impossible. It would be hidden inside a common object such as a bicycle, typewriter or painting. The message would always end by saying, “This message will self destruct in five seconds.” It would then explode in Tracy’s face for comic effect. Their investigation would take them to the same “old castle” on the outskirts of the city, and after a series of chases and pratfalls the Ghost Busters would corner the ghost (and his/her “sidekick”), which they would dispatch back to the afterlife with their Ghost Dematerializer.
September 3rd, 2013 at 12:03 pm
I’m just skimming through it so far but I see the good Professor refers to Leo the Parakeet’s amicus brief in David Farrar et al’s Georgia case. Now that one’s a classic! How could the court have remain unswayed in the face of such compelling and persuasive scholarship?
September 3rd, 2013 at 2:05 pm
It was a good article, but I am wondering if it was over-long. I mean, for people born inside the country, natural born citizenship is pretty simple. It’s in Wong Kim Ark.
For Ted Cruz, it isn’t quite as definite, but the main question is, “Does Congress declare someone a nbc when they make them a citizen at birth, by parentage?” Which I think will 99.999999% come down as “Yes!”
Because with Birthers, the more you write, the more wiggle room you open up for quote mining and taking stuff out of context.
September 4th, 2013 at 7:26 pm
During the 2nd Session of the 37th Congress in 1862, Rep. John Bingham of Ohio, the principal author of the first section of the Fourteenth Amendment, defined ‘natural-born citizen’ on the House floor and no one disputed his definition. In fact no one has disputed his definition on the House or Senate floor since. The definition of ‘natural-born citizens’ remains as follows:
“The Constitution leaves no room for doubt upon this subject. The words ‘natural-born citizen of the United States’ occur in it, and the other provision also occurs in it that ‘Congress shall have power to pass a uniform system of naturalization.’ To naturalize a person is to admit him to citizenship. Who are natural-born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth – natural-born citizens. There is no such word as white in your Constitution. Citizenship, therefore, does not depend upon complexion say more than it depends upon the rights of election or of office. All from other lands, who, by the terms of your laws and a compliance with their provisions becomes naturalized, are adopted citizens of the United States; all other persons born within the country of parents owing allegiance to no other sovereignty, are natural-born citizens.”
September 5th, 2013 at 9:52 am
Perhaps you should look at later statements by Bingham, who actually had nothing to do the citizenship clause of the 14th Amendment,
“Who does not know that every person born within the limits of the Republic is, in the language of the Constitution, a natural-born citizen.” Rep. Bingham, The congressional globe, Volume 61, Part 2. pg. 2212 (1869)
“That article of Amendment is substantially that all persons born in this land, within the jurisdiction of the United States, without regard to complexion or previous condition are citizens of the Republic.” John Bingham, Congressional Globe, 2nd Session, 39th Congress, pg. 500 (1867)
How about some other members of the same Congress:
“The English Law made no distinction on account of race or color in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward. The Constitution of the United States recognizes the division of the people into the two classes named by Blackstone – natural born and naturalized citizens.” Rep. Wilson. Cong. Globe, 39th Cong., lest Sess. 1116 (1866).
“Thus it is expressed by a writer on the Constitution of the United States: “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.” Rawle on the Constitution, pg. 86.” Rep. Wilson. Cong. Globe, 39th Cong., lst Sess. 1117 (1866).
“I have two objections to this amendment. The first is that it proposes to change the existing Constitution in reference to qualifications of President of the United States. If this amendment shall be adopted, then that clause of the Constitution which requires that the President of the United States shall be a native-born citizen of the United States is repealed, and any person who has been naturalized and then become a citizen of the United States will be eligible to the office of President;” Sen. Howard, The congressional globe, Volume 61, Part 2. pg. 1013 (1869)
“The Constitution of the United States declares that no one but a native-born citizen of the United States shall be President of the United States. Does, then, every person living in this land who does not happen to have been born within its jurisdiction undergo pains and penalties and punishment all his life, because by the Constitution he is ineligible to the Presidency? Senator Trumbull, Cong. Globe, 39th Cong., lst Sess. 2901(1866).
“in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Constitution, note 274: “All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
“I told him that that I thought a man was eligible for the office of President or Vice President even if he was a citizen of the Territory of Tennessee if he was a native born citizen of the United States…If he is a citizen of the United States, born within the limits of the United States, he is eligible, no matter whether he was born in a territory that never became a state or born in the District of Columbia, or inside some of the forts of the country.” Rep. Broomall, The Congressional Globe, 2nd Session, 38th Congress, pg.468 (1865)
“The Constitution requires that the President must be a native-born citizen of the United States.” Sen. Sherman, The congressional globe, Volume 61, Part 2. pg. 1035 (1869)
“No one who is not a native born citizen of the United States, or a citizen at the time of adoption of the Constitution, can be voted for.” Sen. Johnson, The Congressional Globe, 2nd Session, 38th Congress, pg.552 (1865)
“that the President and Vice President must be native born.” Rep. Clarke, Congressional Globe, 2nd session, 40th Congress. 1105 (1868).
“One of those principles is that the candidate voted for must be thirty-five years of age; another is that he must have been a citizen of the United States at the time the Constitution was adopted, or he must be a native-born citizen.” Sen. Davis, 2/2/1865 reported in The presidential counts: a complete official record of the proceedings of Congress at the counting of the electoral votes in all the elections of president and vice-president of the United States; pg. 203 (1877).
“What is the qualification for the office of President? He must be a native-born citizen of the United States and thirty-five years of age. Nothing more!” Rep. Boutwell, 1/11/69 cited in Great Debates in American History: Civil rights, part 2 Volume 8 of Great Debates in American History: From the Debates in the British Parliament on the Colonial Stamp Act (1764-1765) to the Debates in Congress at the Close of the Taft Administration (1912-1913), United States. Congress, pg. 113 (1913)
“you shall be permitted to take a position equal in every respect, with the exception, perhaps, of not being eligible to the office of President of the United States, to that of the native-born citizen.” Mr. Schenck, Cong. Globe, 39th Cong., lest Sess., pg. 298 of Appendix (1866).
“The Constitution of the United States provides that no person but a native-born citizen of the United States, with other qualifications as to age and residence, shall be president of the United States…. Is the Congress of the United States prepared at this time to adopt a proposition that negroes and Indians and Chinese and all persons of that description shall be eligible to the office of President…” Senator Williams, Cong. Globe, 39th Cong., lst Sess. 573 (1866).
September 10th, 2013 at 1:48 pm
Prof. William Jacobson:
“The problem with that argument, however, is that the English translation of the 1758 edition did not use the term “natural born Citizen.” That term did not appear until the 1797 edition, a decade after the Constitution was ratified.”
From the Library of Liberty:
“A Dublin translation of 1787 is remarkably fluent and elegant, but it does not include the substantive notes of the original nor, more importantly, the notes added to the posthumous French edition of 1773 and intended by Vattel for a second edition he did not live to complete……………. However, two English editions from the end of the eighteenth century include Vattel’s later thoughts. One, from 1793, contains a pagination error. This has been corrected in the revised version, London 1797, and the latter forms the basis for the present edition.
Posthumous additions to the French edition of 1773, which were then translated in the edition of 1797, are identified as such in the new notes.”
Footnotes in the 1916 International Edition by 2 French writers points out that the 1775 Amsterdam Edition was a later edition of the 1773 edition sent by Dumas to Franklin specifically for what he called the “American Experience” with a new preface added along with some additional literature.
It needs to be stressed to the Obots that none of this has anything to do with their beloved Dear Leader.
September 11th, 2013 at 9:11 am
Seriously, what point are you trying to make. That Franklin had an edition of Vattel that didn’t have the phrase “natural born citizen” in it? All the framers had copies of Blackstone as well. Again, Professor Jacobson is correct. It is silly to argue the framers were relying on Vattel when no edition of Vattel contained such language. It is not a serious argument to claim they were doing their own secret translation that they told no one about.
November 26th, 2013 at 11:14 pm
There’s an article about how wrong the Obamatized are it can be found here……….. what say you?
November 26th, 2013 at 11:20 pm
All the hoo har about whether or not “natural born citizen” derives from an accurate translation of some French words, is just plain irrelevant ……….
Here’s the operative part from Vattel which really matters…
“The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent.
We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born.
I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”