Our recently deceased cat, Sam, came to me in a dream last
night after the Republican debate. It was a joyful if surprising reunion. Recent
news stories portraying cats as neurotic would-be murderers clearly came out of
the canine community. Sam, though undeniably a fierce hunter, was a dignified
and gentlemanly member of our family.
Sam quickly threw me for a loop.
“Jim,” he spoke, “I need your support in the Republican presidential primary, can
I count on you?”
“I had no idea you were running,” I told him.
“Why, because I am a feline-American?” he hissed at me.
Clearly, I was on dangerous ground with my old buddy.
“Sam, you know, as a black man,” I reminded him, “I can be
neither prejudiced nor speciest.”
“What then?” he retorted. As he did, his posture shifted to that
familiar low-slung threat posture of the hunting cat.
With trepidation, and as matter-of-factly as I could manage,
I said “well, Sam, old friend, you are dead!”
“And?” he replied.
I looked down, worrying that he might see my incredulity at the
whole prospect of a ghost running for, let alone winning, the Republican
nomination for the presidency.
Pausing for a moment, I considered how to explain the Sam
that he really was not eligible to be elected president, and how to do it
without being mean or ugly, and certainly without stepping on his toes, err,
claws.
I could, I thought, take an indirect route.
I could paint a portrait of service as president in such a
light that Sam would see that it was not something in which he was truly interested.
The long hours, the handshaking, the baby kissing, the endless fundraising, the
mundane tasks of the presidency would eat into the normal routine of one who enjoyed
lounging on the back of the couch, there basking in the sunlight coming through
a window, or chasing the occasional mice, birds, or squirrels, or staring
longingly at the cat food bag. Being indirect had its advantages, especially
when the person, err, cat to whom I was speaking came equipped with a sharp set
of claws.
Still, while cats may creep in on soft paws, I preferred
the direct route.
“Sam, what is the point of running for the office of
president if you’re not eligible to be elected to it? As strange as it may seem
to you,” I told him, “although there are very few legal requirements to be
eligible for the office of president, the truth is that you probably do not satisfy
one of the requirements, perhaps more than one.”
At this point, Sam was licking his paws and using his moist
paws to groom his face. He paused, “go ahead, do tell.”
“It’s like this, Sam,” I said, reaching back into my memory
of the Constitution, “to be eligible to be elected president, the US
Constitution sets a small number of qualifications.”
My ethereal visitor stretched, as felines do, pawed the
couch cushion on which he sat, as though he were kneading dough, then, settling
down, simply said, “Proceed.”
“Article II of the Constitution creates the Executive
Branch of the federal government. By executive, the Constitution means that
part of the government that actually executes or carries out the laws.”
“Jim,” he snapped, “I’m not a school kid, get to the meat
of it, and quick, because I’ve shortly got to go get to the meat of a bird!”
“Very well,” I responded, “in Article II, the Constitution
has one clause, the Presidential Eligibility Clause, which sets the
qualifications necessary to be elected president. It says,” and here I recited
as best I could from memory:
“So,” I resumed with my explication of the text, “you have
to be a natural born citizen, you have to be at least 35 years old, and you
have to have resided in the United States for the previous fourteen years at
the time of the election.”
Sam eyed me, quizzically. He harrumphed.
“Well, I was born in the Commonwealth of Virginia,” he
reminded me.
(Sam was part of our family from about a year after his
birth. He was, as I wrote in a previous post,
A King Among Cats. While he had not previously told me where in the Washington metro area he was
born, I always assumed he was a native Virginian.)
I could see where this line of thinking of his was leading.
“Sam, no doubt you were born in Virginia,” I assured him,
“but it takes more than being born in Virginia to be a natural born citizen.
You have to be a person.”
He interrupted me, “I thought you said you weren’t
speciest?”
“It’s the Constitution, Sam, not me,” I replied
apologetically.
He countered, “Is that the same Constitution that,
according to the Supreme Court, considered black people like you to be
chattels, property, and not persons?”
Obviously, Sam had been listening to my musings over the
years, and knew my constant criticism of the Court for its oftentimes purposive
misinterpretation of the Constitution. He had found my weakness, or at least my
soft spot.
“Well, yes, it is. But the fault there was the Supreme
Court’s, not the Constitution’s, and as so many for so long had behaved as
though the Constitution was a blank slate on which creative justices were
entitled, as justices, to write their preferred meanings of the words, rather
than to apply the words with their common meanings.”
“I remember you saying once that one the justices had claimed
that rivers, trees, streams and such should be treated as persons. Why would
you think that a tree is a person, when it isn’t even a fellow member of the
animal kingdom like you and me, and that we cats couldn’t be persons too?”
“Sam, you remember what I said then, if you remember me
talking about Justice Douglas and his dissenting opinion in the Sierra Club v. Morton case.” I
continued, “Justice Douglas was simply ignoring the plain meaning of the words
of the Constitution, perhaps it was just an aspect of his advancing age and
confusion, or, perhaps, he fell under the delusion of folks who thought trees
were persons but babies before birth were not. In any event, his argument was made
in a dissenting opinion because no other justice on the Supreme Court has ever
claimed that non-humans could be persons.”
“Well,” he retorted, “at least you admit that a Supreme
Court justice agrees with me. What’s the rest of your poor argument?”
I knew the rest of this conversation would not go well.
“As I said,” continuing my explanation, “to be eligible you
have to be a ‘natural born citizen’ and the Constitution has always been
understood to exclude any candidate from that category that is not a ‘human’
person. But you have to be more than a person, and more than just a citizen. You
have to be a ‘natural born citizen’ to be eligible.”
Apparently that distinction caught his attention, “What’s
the difference between a ‘citizen’ and a ‘natural born citizen?’”
“Exactly the right question, Sam!” I showed my excitement
at his reasoning through things.
“A citizen of a country is a person, a human, that owes
duties to that country and that enjoys rights and privileges not available to
those who are not citizens,” recalling the things I wrote about citizenship in
another post.
“But the Constitution uses both the word ‘citizens’ and the
phrase ‘natural born citizen’ so we have to be sure we understand each word and
whether there are differences.”
He nodded encouragingly, so I continued.
“’Natural born citizen’ appears just once in the
Constitution, in that presidential eligibility clause,” I winced a bit as he
had his fun scratching me with his claws, “and nothing in that part of the
Constitution defines ‘natural,’ ‘born,’ or ‘citizen,’ or ‘natural born
citizen.’”
“If the words are not defined,” he posed the question, “why can’t they mean
whatever they need to mean in order for me to be eligible to be elected
President?”
“So, as you can see, there are actually two kind of
citizens in the Constitution. One kind of citizen is a natural born citizen,
the other kind of citizen is a not a natural born citizen.”
At that point, Sam pushed his head under my hand. I'd
almost forgotten how much he enjoyed having his forehead and chin scratched. I
began to work gently on it.
“Well Jim,” he asked, “What's the difference?”
“The difference, Sam” I explained, “is that some persons
are born as citizens of a country, while others become citizens by operation of
a law. Persons who are born citizens of a country are ‘natural born citizens.’
Others, immigrants to the land, for example, apply for citizenship through a
process called ‘naturalization.’”
“You see, before the Constitution, each of the 13 states
had their own power to make citizens out of persons who were not yet citizens.”
At that point, Sam jerked his head up against my hand, “There
you go with that person thing again.”
“I’m sorry, Sam.”
I continued, “In any event those who came to one of the
states prior to the adoption of the Constitution could become citizens through
the state law process for that state. With the adoption of the Constitution, the
process for becoming a citizen was subject to change. The Constitution assigned
to the Congress power to provide a uniform rule for naturalization.”
“In fact, after the Constitution was ratified, among its first
acts, Congress passed the first Naturalization Act. The Constitution did not define
‘natural born citizen’ but, honestly, a definition for citizen was not needed. Because
the meaning of ‘citizen’ was clear, and the phrase ‘natural born’ was readily
understood to mean ‘one that was born in the country as a citizen, one who owes
special duties to the country and who enjoys special status or privilege within
the country, was the understood meaning of that term in the Constitution.’”
“So the Constitution gave to the Congress no power to
define citizenship. It gave only the power to Congress to provide a uniform
rule for becoming a citizen, ‘naturalization.’”
“So, some people are citizens because they are born here.
Becoming a citizen by birth within it is an effect of our legal descent from
England. At the time of our revolution, in England, everyone born within the United
Kingdom was considered a subject of the crown. Our revolution from England did
not have to do so much with our dislike for, or intolerance of English law, but
with our rejection of the tyrannical application of it to Englishmen living in
the colonies. So, when the colonies separated from England, and asserted their
own separate station as nations, one of the first legal acts of those new
nation-States was to adopt English law as the body of law for each of the States.”
“I don't want to get too deep in the weeds, Sam, but at
that time, this legal principle – jus soli – governed citizenship by birth in
England, and in the United States. Some other nations took a different
approach. They followed a rule called ‘jus sanguinis.’ Under ‘jus sanguinis,’ a
person, when born, took the same citizenship as their parents. Neither England
nor the United States ever followed jus sanguinis.”
“So, when the Constitution said that to be elected
president one had to be a ‘natural born citizen,’ it was making clear that
while there were both ‘born citizens’ and ‘naturalized citizens’ only a ‘natural
born citizen,’ that is born here in the United States, enjoys the special
status of eligibility to be elected president.”
“You see, Sam, if the only issue of eligibility for you was
whether you were born here, you would be eligible to be elected president. That
other matter, though, the fact that the term ‘citizen’ is limited to ‘person,’
pretty much puts the kibosh on your eligibility.”
“Once again with the speciest dominance,” Sam retorted. “I
can’t count on four paws the number of times I have heard you talk about the Dred Scott case, where the Supreme Court
ruled that blacks were not, could never be, ‘persons.’ You’re an attorney, and
a constitutional law attorney at that, couldn’t you file a lawsuit to get a
decision that I am a natural born feline citizen?”
“Alas, Sam,” thinking that I might not dissuade him from his pipe dream, “it
took a Civil War, nearly a half million dead, and 80 billion dollars of
war-making expense to get to the point where the Nation rose up and reversed Dred Scott by adopting the Fourteenth
Amendment. I suspect we aren’t ready in this country to fight a costly, deadly
war to win you status as a feline-citizen. Perhaps PETA would take on the case?”
“In any event, friend, the other eligibility conditions present
problems for you.”
“How so,” Sam asked me.
"Well, Sam, under the Eligibility Clause, you have to be at
least 35 years old and you have to have resided in United States for the
previous 14 years. By my best reckoning, you were about 11 years old when you
passed away. That means you would not
have been 35 years old nor would you have lived in the United States for the
previous 14 years.”
“Now just a doggone minute,” Sam interrupted me, “you know,
and I know, that cats age differently than humans. In fact, you say I was 11
years old but most feline experts agree that I was 15 by my first ‘human’
birthday, 25 by my second ‘human’ birthday, and had reached the human
equivalent of 60 years of age at the time I turned 11 in human years.”
“I have another bone to pick with you,” Sam continued.
“Didn't you say that, to be eligible to be President, a
person had to be a ‘natural born citizen’ of the United States? And didn't you
say that to be a ‘natural born citizen’ of the United States one had to be born
in the United States?”
“Certainly,” I replied.
“But there is a Republican candidate for the nomination who
was not born in the United States. Why is he eligible to be elected president
and I am NOT?”
“You're referring to Ted Cruz,” I said, “in my book, Ted
Cruz would make an excellent president, but, like you, he is not eligible to be
elected, at least not according to my understanding of the Constitution.”
“This is a long-running dispute that I have had with those
who say that Ted Cruz is eligible to be elected president. Ted was born in
Canada. By Canadian law, Ted Cruz was born a citizen of Canada. Canada, like
the United States, is a nation whose laws were based on English common law.
Unlike the USA,
Canada continues its close relationship with the United Kingdomas part of the Commonwealth of Nations. A person born in Canada, is, by Canadian law, a citizen of Canada and also a
subject of the crown of England.”
“Well then, Jim,” Sam again interrupted, “why is Ted
allowed to run and I am NOT?”
“Sam, remember when I said that the Constitution grants to
the Congress the power to make a uniform rule for naturalization? All the way
back to the first Naturalization Act and coming forward, Congress has asserted
a power to grant ‘natural born citizen’ status to persons born outside of the
United States under certain conditions.”
“This explanation may be a little convoluted, but let me
put it this way: In England, under the
common law, every person born within the boundaries of the kingdom was a
subject of the crown, what we would call a ‘citizen.’ There was one exception to
that rule: children born to foreign emissaries - - representatives from foreign
countries serving their country in England - - were not considered citizens or
subjects of the Crown.”
“That special rule reflected international law and
international legal principles that were necessary to allow a system of
international diplomacy.”
Sam stretched again. I considered that I might be losing his attention but
continued, “Here's an example.”
“Suppose the government of France, under King Louis, sent
an ambassador to England. The Ambassador brings his family with him. While
serving France in England, the French ambassador’s wife gives birth to a son.
Under English law, absent the exception, the Ambassador now has an English son,
and the English Crown has a new subject, and the French Crown has an ambassador
with a foreign son. So the principle developed, that children born to foreign
emissaries on duty in another country did not have the citizenship of the
nation in which they were born. Instead, they had the citizenship of their
parents’ home nation.”
“Jim,” Sam interrupted again, “that doesn't explain why Ted
Cruz is eligible to run for president and I am NOT. Was one of Ted parents an
ambassador to Canada?”
“No, you're right, Sam,” I said. “That doesn't explain how
Ted is eligible, and no, neither of his parents were ambassadors to Canada. In
fact, Ted’s mother was a US citizen; his father was an expatriate citizen of
Cuba. Under the jus soli rule I mentioned before, Ted clearly would not qualify
as a ‘natural born citizen.’ Instead, today, and at the time of Ted Cruz birth
in Canada, to the Naturalization Act provides that certain children born outside
the USA to certain citizens of the United States are citizens at birth.”
“When Congress passed the Naturalization Act, as I said,
they were exercising the Naturalization power. The first Naturalization Act
expressly provided that persons born abroad to certain US citizens would be ‘natural
born citizens’ of the United States. Congress subsequently repealed that act,
and never again included such a provision in future versions of the
Naturalization Act.“
“Just a second, Jim,” Sam snapped, “you said ‘naturalization’ made people who
weren’t citizens into citizens. If Congress used its naturalization power to
pass the Naturalization Act and included in the Act a section making some
people born outside the United States citizens at birth, then wouldn’t those
persons actually be ‘naturalized citizens?’”
“And that, Sam, is exactly why Ted isn’t eligible to be
president, much as I like the man, his character, and his policies.”
Suddenly Sam stood. He turned and turned, rubbing his side against my leg. Then
he turned and looked up at me, “Jim,” he said, “I wonder if you would mind
helping me draft a press release? I think I’m going to withdraw from the race.”
“My pleasure, Sam,” I said, petting his head as he faded into memory, “my
pleasure entirely.”
