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.