McCain says concerns over Cruz citizenship legitimate

McCain says concerns over Cruz citizenship legitimate

2 hours ago

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FILE - In this Jan 4, 2016 file photo, Republican Presidential candidate, Sen. Ted Cruz, R-Texas, campaigns at Penny's Diner in Missouri Valley, Iowa. Cruz and Marco Rubio are fighting for the favor of many of the same undecided voters across Iowa, where even some of the most attentive Republicans say they can’t make up their minds less than four weeks before voting begins. (AP Photo/Nati Harnik, File)

WASHINGTON (AP) — Arizona Sen. John McCain said questions surrounding Ted Cruz's right to run for president since he was born in Canada should be explored, even as some argue that Cruz is still considered a natural born citizen.

Speaking on the Chris Merrill Show in Phoenix late Wednesday, McCain said concerns raised by Republican front-runner Donald Trump over whether Cruz can be president are legitimate.

"I think there is a question," McCain said. "I am not a constitutional scholar on that. But I think it's worth looking into. I don't think it's illegitimate to look into it."

Cruz was born in Alberta, Canada to an American mother and Cuban father. He renounced his Canadian citizenship in 2014.

McCain himself was born on a military base in the Panama Canal, an issue raised during his 2008 presidential run against Barack Obama, whose American birth was doubted by some, leading to failed legal challenges.

"That's different from being born on foreign soil," McCain said, highlighting that the Panama Canal was an unorganized territory of the United States for much of the 20th century.

Cruz dismissed the claims Wednesday, before McCain made his comments. On a campaign stop in Iowa, Cruz said it is "quite straightforward and settled law that the child of a U.S. citizen born abroad is a natural born citizen," he said.

"John McCain was born in Panama, but he was a natural born citizen because his parents were U.S. citizens," Cruz added.

Both men used the example of Barry Goldwater, the Republican party's nominee for president in 1964, as an example to defend their claims. Goldwater was born in Arizona before it became a state, but both of his parents held U.S. citizenship, allowing him to run.

http://news.yahoo.com/mccain-says-co...-election.html

Yeah, it's definitely a problem because he's not eligible. Two requirements for natural born citizen under US Constitution Article II:

1. born in the USA
2. Two US citizen parents

Very simple. Any other type of citizenship comes from either the 14th Amendment which is not what Article II is talking about becausethe 14th Amendment didn't exist and it did not modify Article II which it could have but it didn't, or citizenship granted through the US Naturalization Acts which were not in existence in 1789 when the Constitution was written and signed, which are laws only which do not amend the Constitution. The reason for this special requirement in the Constitution for President and Vice President versus members of Congress who only have to be citizens is so citizenship is never challenged, disputed or changed with respect tot his office, which was necessary then as it is now to protect the Offices of President and Vice President from foreign influence, loyalties, cultures and so forth.

Cruz, Rubio, Jindal, McCain, Obama .... are not natural born citizens. They're citizens but not natural born citizens. Interesting, 4 Senators and a Governor who don't know our country well enough to even know they aren't eligible to be President or Vice President of the United States under the US Constitution, and 3 of them are lawyers.

It's a pretty sad situation that they put their career ambitions ahead of the Constitution, and speaks for itself, seems to me.

Why Ted Cruz is a “natural born citizen”
y Randy Barnett January 7 at 11:16 AM

Linking to this succinct but powerful essay by Paul Clement and my Georgetown colleague Neal Katyal, Jonathan usefully summarizes the legal argument for why Ted Cruz, who was born in Canada to an American mother, is a “natural born citizen” under Article II, section 1 of the Constitution, which provides:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution,shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. (emphasis added)

As he concludes in his post: “Under U.S. law, the fact that Cruz was born to a U.S. citizen mother makes him a citizen from birth. In other words, he is a ‘natural born citizen’ (as opposed to a naturalized citizen) and is constitutionally eligible.” To the evidence elicited by Clement and Katyal, I wish only to add that this conclusion is also theoretically justified by a proper conception of popular sovereignty.

The term “natural born citizen” had no existence or independent original meaning prior to the moment it was included in the Constitution the United States was founded. It was adapted by the framers [of the Constitution] from the well-known British concept of the “natural born subject” of the sovereign monarch. England had numerous and changing legal rules governing exactly who was and who was not a “natural born subject,” which can be used to muddy the waters. But one consistently applied rule is particularly germane: The offspring of the King were natural born subjects of the King regardless of where they were born, whether on English territory or not.

In the United States, We the People are the sovereign. In my forthcoming book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People,” I explain how the Declaration of Independence implies an individualist conception of We the People and that it is “to secure” the individual rights of the people that governments are established. This individualist conception of popular sovereignty was articulated by Chief Justice John Jay and Justice James Wilson in the Supreme Court’s first great constitutional case of Chishom v. Georgia in 1793.

As Justice Wilson put it, laws “derived from the pure source of equality and justice must be founded on the CONSENT of those whose obedience they require. The sovereign, when traced to this source, must be found in the man,” meaning the individual person. He then referred to the states as “an aggregate of free men, a collection of original sovereigns.” Chief Justice Jay affirmed the “great and glorious principle, that the people are the sovereign of this country,” and he then immediately referred to Americans as “fellow citizens and joint sovereigns.” Notice the plural use of “sovereigns” by both.

Like the evidence cited by Clement and Katyal, an individualist conception of We the People and “popular sovereignty” supports the same conclusion: just as the offspring of the sovereign monarch are “natural born subjects” of the realm regardless of where they are born, so too are offspring of the sovereign individual citizen “natural born citizens” of the United States, though they may be born outside its borders. Who is the sovereign, not territory, is what matters. In the United States, it is We the People, each and every one.


UPDATE #2: I see now that David Upham reached the same conclusion, albeit tentatively, for the same reason back in March. In Ted Cruz: A Probable Natural-Born Citizen of the American Republic he concludes:

All authorities seemingly concurred that the offspring of the King, regardless of place of birth, were plainly the King’s “natural-born subjects.” No statute was ever needed to make such persons “subjects.” Indeed, as Blackstone added, even the King’s ambassadors, because of their representative capacity, likewise carried abroad, by extension, the movable bodily sovereignty of the King: “the children of the king’s embassadors born abroad were always held to be natural subjects.” Unlike children born abroad to ordinary subjects, these children required no parliamentary naturalization at all—they were always deemed “natural-born.”In our republic, however, the citizens became the sovereign. As Chief Justice John Jay wrote in Chisholm v. Georgia, “at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country…; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.” If so, then the citizens of the American Republic arguably carry with their bodies abroad this sovereignty just as the King and His ambassadors had. Consequently, since 1776, any child born to a member of the sovereign citizenry of the United States is as much a “natural-born citizen” of our Republic as a child born to the sovereign King was the natural-born subject of the British monarchy.Ted Cruz, then, is probably a natural-born citizen of the United States, not because he was a citizen “from birth.” Rather, he is a natural-born citizen because at his birth, he was the offspring of one of the Queens or Kings that compose the American Sovereign.

Great minds and all that… Although I have never before published on this subject (no pun intended), Larry Solum did credit me in his 2015 articleOriginalism and the Natural Born Citizen Clause with having privately made this point to him.

UPDATE: My post erroneously stated that the phrase “natural born citizen” was devised by the framers of the Constitution, when in fact it had been previously used in state constitutions after the founding of the United States. See, for example, here. Although this does not affect the substance of my point about how the change from “subject” to “citizen” results from a shift from monarchical to popular sovereignty at the founding, I do regret the error (now corrected), which was based on my misrecollection of an article on the subject.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. His books include: Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2d. ed 2014); and The Structure of Liberty: Justice and the Rule of Law (Oxford, 2d. ed. 2014).

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/07/why-ted-cruz-is-a-natural-born-citizen/