How Hard Will Cruz Fight to Keep This Document Secret?

The image above is the top portion of page 1 of the official form required by the Canadian government for any person seeking to renounce their Canadian citizenship.

Did you ever think you might have an American President that actually had to file this form, in order to assuage the concerns of his fellow Americans about his lifelong dual citizenship?

Yet here we are, in 2016, facing the prospect, slim but real, that the Republican Party would put an expatriate Canadian on the top of their November ticket.

Given that circumstance, you would think there might be some curiosity about the contents of Ted Cruz's Application to Rounce Canadian Citizenship.  After all, there has been no end of curiosity about the contents of other candidates' personal files, as a principal example, the incessant cry for the tax returns of Donald Trump (returns that Ted Cruz insinuated might show Trump had dealing with "the mob"). Yet, here we are 3/5ths of the way through the primary process and there is yet NO HUE and CRY, "Give us the Application!"

It isn't as though it would be difficult to produce.

Ted's an attorney. He undoubtedly maintained a copy of the document he submitted.

And, it is something of a curiosity, sure, but it is more than just a curiosity. Remember, one must be a natural born citizen of the United States to be eligible to be president. Canada, on the other hand, requires one that renounces Canadian citizenship to prove that they have citizenship elsewhere (avoiding persons becoming stateless as a consequence of granting such an application).

Seeing Ted's form would provide us with important information and insights.




















Notice, for example, Question 5A requires affirmation of citizenship elsewhere than Canada, and that proof of such citizenship be attached to the application. Question 5B requires that the applicant state the reason for renunciation. Given that Ted Cruz's mom's name appears on a list of potential Canadian voters, there is some possibility that she actively surrendered her US citizenship before Ted was born, or that she chose not to register his birth with the US Consulate at the time.

Getting an eyeball on Ted's proof of citizenship here just might prove interesting.

Perhaps his mom did file a consular report of birth abroad, perhaps not. Just as interesting would be the discovery of Ted's proffered reasons for renouncing his "natural born" Canadian citizenship. What might Ted have said? Perhaps, "I want to run for President, and your confused American cousins might not understand that I can be a 'natural born' citizen of two nations at the same time"? Or, maybe, "Hey guys, this is embarrassing, I've already been elected to the US Senate and never even thought about my dual citizenship and how it might sit with the YAhoos down here in Texas"?

Page two of the renunciation application has some good questions on it. Question 6 inquires about current address inside or outside Canada. It requires PROOF of residence outside Canada too. Doesn't seem like terribly private and personal information, the kind that Ted would need to hide. In fact, Question 6 is the kind of question he's probably had to answer a bunch of times, for things like tax returns, job applications, driver's licenses, etc.

Of course, pesky Question 7, seeking details regarding his birth might fester a bit in Ted's mind. Why, you ask. Simply because Question 7, properly answered, would remind everyone that Ted calls Calgary home, and Canada is the country of his origin. It's a craw sticker, really. Every time he gets past the concern that we might be frying Canadian bacon in the White House, someone offers him a Molson or cracks a Calgary stampede joke.

Now page 4, this one is a puzzler for a guy like Ted. It ought to be straight forward. Just list your parents, their countries of origin, and a few minor marital details. But again, the completed Ted Cruz renunciation would serve as a reminder that Ted's dad was, in all likelihood, a citizen of Cuba at the time of Ted's birth. And that really stinks up the citizenship works. Because, as it turns out, Ted was claimed by THREE NATIONS at birth:

• Cuban law asserts that children born to Cubans abroad are citizens of Cuba, and of no other Nation
• Canadian law asserts that all children born in Canada are citizens of Canada
• US law grants naturalized citizenship at birth to children born abroad to Americans

So, Ted's assertion that he is a "natural born citizen" is certainly true. He's a natural born citizen of Canada, by Canadian law. And he is a natural born citizen of Cuba by Cuban law. The assertion that he is a natural born citizen of the United States, however, is unsupported by law or fact.

The last page of the renunciation application is a document checklist. It has to be filed with the application and it lists documents required to be filed with the application. So, in Ted's case, he would have had to provide a certified copy of his birth certificate.

Fortunately for Ted, that seems to have been an easy task. His birth certificate even showed up in the newspapers:

Still there are those other troublesome document requests:

• certified copy of proof of citizenship of a country other than canada
• certified copy of proof of residence outside canada
• certified copies of two additional pieces of personal ID, including at least one photo ID

Now, to prove up his citizenship elsewhere, what might Ted offer?

Well, if you ask the United States Citizenship and Immigration Service, the answer would be:

The most common documents that establish U.S. citizenship are: 

• Birth Certificate, issued by a U.S. State (if the person was born in the United States), or by the U.S. Department of State (if the person was born abroad to U.S. citizen parents who registered the child’s birth and U.S. citizenship with the U.S. Embassy or consulate); 

• U.S. Passport, issued by the U.S. Department of State; 

• Certificate of Citizenship, issued to a person born outside the United States who derived or acquired U.S. citizenship through a U.S. citizen parent; or 

• Naturalization Certificate, issued to a person who became a U.S. citizen after 18 years of age through the naturalization process.

Of course, Ted admits his Canadian birth, so there won't be a birth certificate forthcoming from a US State. But perhaps Ted's parents registered his birth with a consulate in Canada? If so, producing a copy of that consular report and a certificate of citizenship should present no logistical problem, although the discomfort factor accompanying yet another reminder of his foreign birth may trouble him, and lead to a decision to decline to produce the Application for Renunciation of Citizenship.

Ted won't likely be president of the United States. But he has gotten near enough that it is time for the public to insist that he fully disclose the process by which he abandoned his natural born Canadian citizenship. Clear the air, Ted, produce your Application to Renounce Canadian Citizenship and the supporting documents you filed with the application.

Sam, A Natural Born Catizen, for President?

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:

“No person except a natural born citizen, or a citizen ofthe United States, at the time of the adoption of this Constitution, shall beeligible to the office of President; neither shall any person be eligible tothat office who shall not have attained to the age of thirty five years, andbeen fourteen Years a resident within the United States.”

“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?”

“Because,” I tartly replied, “you, Sam, are no Humpty Dumpty and the Constitution is not ‘Through the Looking Glass!’”

“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.”

To Rand Paul, Cruz is Toast, But Wimp Republicans Should Grab Their Bao and Get Out

So Ted Cruz is not the TOAST of the Senate, but, instead, is TOAST in the Senate.

At least, that is the take on the situation as seen by Senator Rand Paul, the junior Senator from the Commonwealth of Kentucky. He made those observations in an interview carried on Fox News Radio (hat tip to Rollcall.com). In Rand's view:

Ted has chosen to make this really personal and chosen to call people dishonest in leadership and call them names, which really goes against the decorum and also against the rules of the Senate, and as a consequence, he can’t get anything done legislatively. He is pretty much done for and stifled and it’s really because of personal relationships, or lack of personal relationships, and it is a problem.

I lived in Kentucky for a couple years. I am, in fact, a member of the Kentucky Bar Association. I have family there. One might say our family's ancestral lands include a broad swath of Eastern Kentucky, since our long grand grand sire, John Beckley, a friend of Thomas Jefferson, held land patents for large tracts in what would become the Commonwealth.

As a public service, I am providing the following translation of Rand's observations, so that you can understand what Rand actually said:

Ted Cruz has exposed Mitch McConnell as a liar, and several of his republican colleagues as political eunuchs who talk an interesting game but consistently walk down Capitol Hill with their balls in a jar answering the taunts and jeers of BarryO the Boyking with servile kowtows. A man who does such things makes the public wonder why the eunuchs willingly allowed their own castration.

In turn, that makes the decision to be a ball less, unmanly, vigor-free, political courtesan one that even the eunuchs question within themselves. Such questioning makes their own hearts and minds burn with shame. Of course they hate Cruz. Of course they will refuse to work with him. His manly firmness in the fight, his willingness to stand on principal, these things expose them as what they are: neither man, nor woman, neither clever nor skilled.

Later this month, for the first time since the Last Emperor of China discharged the imperial eunuchs, the United States will witness a courtesan eunuch leaving Capitol Hill, when John Boehner makes good on his hissy fit and departs the Speaker's Chair in the House. Rumors already are running rampant that the skulduggery among Republican courtesan eunuchs is not yet complete: it appears that party leadership is also urging Mitch McConnell to grab his bao and go.

Ted Cruz Still Isn't Eligible to Be President ... Or Is He?

The Eligibility Clause of Article II states:

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.

Going back two years, I expressed the view that Ted Cruz is ineligible to be elected President of the United States. In the interim, I have written a few additional posts, including one responding to two former Solicitors General of the United States. Their joint blog post on Harvard Law Review's blog put them in the "Ted's eligible" column. I've gathered my posts in a convenient page for your reference.

For me, Cruz's nettlesome thicket is found in that first phrase, "No person except a natural born citizen[.]" Cruz was born to an American mother and Cuban expatriate father. His married parents lived in Canada at the time of his birth. In fact, Cruz held dual Canadian and US citizenship until 2014 when he surrendered his Canadian citizenship.

Now, to get into the nettles of his thicket.

Cruz, under Canadian law, was a natural born citizen of Canada at birth. But, because US law at the time of his birth so provided, he also acquired US citizenship at birth.

Now, the question that troubles me, the obstacle I see standing between Cruz and the Presidency, is whether that citizenship he acquired at birth meets the requirement that he must be a "natural born Citizen." You see, he either acquired that status because he had a natural right to it, or because his mother had a natural right to confer that status on him, or because the nation had a natural right to confer it on him. I have concluded, based on his birth outside the United States, that he is not a "natural born citizen."

I have not changed my conclusion. I am, however, giving the possibility that he is eligible one last probing. Let me explain a dilemma, and ask your assistance.

Allow me to back into the discussion this way:  I am a citizen of the United States. I know that I am. But, how do I know it? I am a lawyer by trade, and like most lawyers, I tend to examine things through the lens of the law. In this instance, I examine the question of my citizenship through that same lens, and conclude that I am a citizen. In this case, the lens of the law is tinted with statutory, constitutional, and historical tints.

If only everyone could agree with the easy simplicity of constitutional text.

The Fourteenth Amendment to the Constitution says that I am a citizen. 

It says, all persons (I'm one of the those), born or naturalized in the United States (I was born there), and subject to the jurisdiction thereof (since I am not part of a foreign diplomatic corps here on service to that nation, and since I am not part of an enrolled Indian tribe, I am subject to its jurisdiction) are citizens of the United States and the State in which they reside.

A federal statute also says that I am a citizen. 

Title 8 USC 1401 provides several categories of persons who are "nationals and citizens of the United States at birth[,]" including "person[s] born in the United States, and subject to the jurisdiction thereof[.]" As I mentioned above, I am one of those folks, so I am a citizen of the USA by operation of 8 USC 1401. 

But, suppose that Congress had never enacted that federal statute, 8 USC 1401. Would I be a citizen of the USA? Yes, in fact, the separate operation of the Fourteenth Amendment makes me a citizen, whether the Congress adopted a law saying so or not. 

Our common law tradition says that I am a citizen.

Well, then, suppose that the statute had not been enacted and the Fourteenth Amendment had not been ratified and made part of the Constitution. Would I be a citizen of the USA? Again, yes, I would still be a citizen of the United States. As my prior posts indicate, the States that make up the Union -- Louisiana excepted -- adopted the common law of England when they were admitted to the Union (or in the case of the original thirteen colonies, when they created it). Under English common law, a person born on English soil was a subject of the Crown (unless their parents were present in England on diplomatic service from another nation). 

Translated to America, this concept of jus soli meant that, born on the soil of the Commonwealth of Virginia, one was a Virginia citizen. So, even in the absence of any provision of the Constitution or statute, I would be a citizen of whatever State in which I was born (New Mexico, by the way). Prior to ratification of the Fourteenth Amendment, State citizenship in any State of the Union equated with citizenship of the United States.

In that period, prior to the Fourteenth Amendment and after the ratification of the Constitution, Congress had a constitutionally-derived power to "naturalize" citizens. Naturalization means to make one a citizen who was not born one. The States granted that power to the Congress in Article I, section 8 of the Constitution. When Congress first exercised that power, in the naturalization act of 1790, it adopted a provision of the law that made certain children born to American parents abroad "natural born citizens." Five years later, Congress repealed that law and crafted a new Naturalization Act, but did not again employ the phrasing "natural born citizen" to characterize the citizenship status of children entitled to be citizens despite their birth abroad. 

So, then, Congress took one foray into the field of granting "natural born citizen" status via statute, and has never done so since then. That does not necessarily answer the question of eligibility because it does not necessarily answer the question of whether there is a difference between a "natural born citizen" and "citizen at birth" (which is the statutory phrasing from the Immigration and Nationality Act).

The Constitution would resolve this lingering doubt of mine if, but only if, it stated a governing principle in an indisputable manner. I happen to think that it does so when it states the requirement of being a "natural born citizen" for purposes of presidential eligibility. To my mind, that leaves anything other than citizenship consequent to birth on our soil as different from "natural born citizenship." The problem, however, is that all manner of folk, including other legal "experts," treat the principal citizenship statute (8 USC 1401) as conferring "natural born citizenship" on those children born abroad who are treated in the statute as being "citizens at birth."

If we go back to our lineal legal ascendants, the English, their Parliament asserted and exercised a power regarding naturalization of persons born abroad as English subjects. Remember, English law on creation of the subject-Crown relationship required only that a person was born on English soil (except when parents were present in English under legal privilege by, for example, service as emissaries of a foreign power). Yet, before we pulled ourselves up from the English garden and replanted ourselves as the united States of America, Parliament had asserted and exercise a power to grant to certain persons born abroad from English the status of natural born subjects.

So then, the question might be answered by assuming that the power asserted by the Parliament to make natural born subjects of persons that, prior to Acts of Parliament, would only ever be denizens of the Crown was a power natural to, attendant to, the legislative function. If that were the case, then when we stood legislatures up in the united States of America, there would be no reason to suppose that the same power exercised by Parliament -- making natural born subject out of foreign born denizens -- could not be exercised by the State legislatures. Of course, that still does not answer whether a like power would be found in the grant of legislative authority to the Congress by the States in the Constitution.

Remember, Article I provides only that Congress shall have power to make a uniform rule for naturalization. It does not provide by express terms a power to make anyone a natural born citizen, nor a power to define the precise terms of the Constitution. But we could assume -- and based on "scholarly" blog posts it appears that many do -- that the States had the power to do so as independent sovereign States. We could then further assume -- as those scholarly blog posts do -- that the States concluded that they should grant to the Congress that power and that they did so by the otherwise seemingly unambiguous "Naturalization Clause."

The Governator Question: If Congress Can Make Persons Born Outside the United States "Natural Born Citizens," What Would Prevent Congress from Making Governor Schwarzenegger One?

For those who are willing to take each of these assumptive steps (leaps, in my judgment), there really is a further problem that they must own up to as a consequence of their approach to the construction of this constitutional provision. If the Congress garnered from the States via the "Uniform Rule of Naturalization" Clause a power to grant "natural born citizen" status to certain persons born abroad, what limiting factor prevents Congress from expanding the categorical definitions from time to time, as need, or whim, direct? I refer to this as the Governator Question.

Suppose that a Republican majority in the House and the Senate passed a law tomorrow adding a new section to the Immigration and Nationality Act. That provision, the Governator Clause, would permit any person that has acquired citizenship by naturalization, that has continuously resided in the United States for twenty years or more, and that has been elected to a State wide office at least once, to be treated, for purposes of law, as a "Natural Born Citizen." The effect of such a law would be to make Arnold Schwarzenegger eligible to be elected President.

Perhaps that really is what our Constitution has done. Perhaps the delegates to the Constitutional Convention of 1787 actually crafted the "Uniform Rule of Naturalization" Clause with all these sequelae and consequences in mind. Perhaps the States in convention to ratify the new Constitution really contemplated the surrender of these affects of sovereignty to the federal government.

If those who can show these discussions took place would kindly do so, I could wholeheartedly support Ted Cruz. If those who can show that the Convention, and the State ratifying conventions, conducted such votes would kindly do so, I could wholeheartedly support Ted Cruz. If those who can show that the participants in these conventions held these intentions would kindly do so, I could wholeheartedly support Ted Cruz.

I await proffers of such evidence as might be forthcoming.

McConnell: Powerless to Resist SCOTUS Marriage Decision. Oh Really?

[This is Part One of my answer to the question: Is there anything that Congress can do to address the recent Supreme Court decision in Obergefell v. Hodges? ]

In a stunning 5-4 decision, the Supreme Court of the United States struck down the laws of 39 States by which those States limited the issuance of marriage licenses to opposite sex couples. In Obergefell v. Hodges, Justice Anthony Kennedy, writing for the Court's bare majority, directly held:

The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples. 

Predictably, the decision was broadly celebrated by supporters of same-sex marriage, and criticized by opponents.

In the aftermath of Obergefell, many questions remain, and likely will have to be answered over the course of the coming years. Some of these questions will be profound, some pedestrian:

• Will opening the definition of marriage to include same sex partners actually benefit those same-sex partners, in matters of commitment, health, and the like?
• Will opening the definition of marriage to include same sex partners actual harm the "institution" of marriage?
• What will the impact of the decision, which imposes on each State the duty and obligation to recognize the legitimacy of marriages licensed in other States have on State programs providing assistance and support to families? 
• What will the impact of the decision be on the judicial processes of States be as the dockets of State Courts are expanded to cover this new species of marriage?
• What will the impact of the decision be on collaterally related fields of law, such as adoption, estates and trusts, and the like?
• What will the impact of the decision be on religious institutions that, by reason of their faith and doctrine, disapprove same sex marriage, and that, in practice, enforce doctrines and policies inconsistent with the Court's conclusion that the Fourteenth Amendment guarantees as a fundamental right the right of same sex couples to marry? Will churches and other religious bodies be at risk for loss of their federal income tax status as 501(c)(3) organizations? Will contributors to such religious bodies lose the tax deductibility of their donations as a consequence?
• What are the implications for businesses, large and small, resulting from this decision?
• Will businesses particularly involved in the wedding industry be required to provide support services -- the design of wedding apparel, the design of wedding cakes, the design of wedding announcements and invitations, the provision of wedding facilities such as banquet halls, wedding chapels -- or suffer severe economic harms if they decline to do so?

These questions cannot be avoided forever. Past experience with this issue tells us that those who have gotten a victory on the central question -- whether same sex couples have a constitutionally protected right to marry -- are not likely to surrender the battlefield just because the big skirmish seems to have been won. Disputes such as the one involving Sweet Cakes by Melissa -- an administrative proceeding predates the Obergefell decision -- point the likely path to be taken as the victors in Obergefell pursue ultimate cultural dominance.

In the face of the uncertainty resulting from the Court's creation of this newly minted fundamental constitutional right, many have wondered whether there is anything that Congress could do to address the Court's decision, and the legal uncertainties it creates. Is there, in fact, anything that the United States Congress can do to answer the Supreme Court's decision?

Before answering that question, we should take note of the fact that there are government officials that have demonstrated their intention to resist what they have determined to be a lawless decision by the Supreme Court and their resolve with regard to that intention. Among those officials are the Governor of Texas, the Attorney General of Texas, the Chief Justice of the Alabama Supreme Court, and the Attorney General of Arkansas.

Governor Abbott, of Texas, sent out a message via Twitter within minutes of the Court's announcement of its decision in Obergefell. His message explained, "Marriage was defined by God. No man can redefine it. We will defend our religious liberties."

Ken Paxton, Texas Attorney General, also expressed his views via Twitter, two days after the Court's decision. Paxton's message advised, "The reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty." General Paxton also responded to a request for a legal opinion regarding the impact of Obergefell on the religious freedom rights of government employees that may be called on to issue marriage licenses to same sex couples, or provide other services of a similar nature. In his Opinion Letter, General Paxton concluded:

• County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses. The strength of any such claim depends on the particular facts of each case.
• Justices of the peace and judges similarly retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections, when other authorized individuals have no objection, because it is not the least restrictive means of the government ensuring the ceremonies occur. The strength of any such claim depends on the particular facts of each case.

In Alabama, the Supreme Court concluded that it would require parties to litigation there to provide briefing on the meaning and application of Obergefell. In light of their Order for additional briefing, Chief Justice Moore explained that clerks would not be required to issue licenses immediately: "What the order means is that within that 25-day period no (probate judge) has to issue a marriage license to a same sex couple."

In Arkansas, Attorney General Leslie Rutledge, while stating that the decision would have to be followed in Arkansas, assured Arkansans that her office would work to insure that religious liberties not be harmed. General Rutledge stated, "Moving forward, it is critically important that the rights of religious freedom be protected, and I am committed to doing so."

Additional responses from Governors and Attorneys General in other States, while expressing their profound disappointment in the decision and disapproval of the Court's reasoning, left no impression that those officials would look for the means to resist the decision, or were currently considering how to protect either religious liberties or economic liberties of those that might be affected by a conscientious opposition to same sex marriage.

So, then, we should turn to see what the response of the other, co-ordinate and equal branches of the federal government may do to respond to the lawless decision of the Supreme Court in Obergefell.

Because one of those branches has undoubted powers and means to address the decision, and to discomfit the Court and its Justices over it, I begin with the other branch, The President.

What can we expect from the White House in reaction to the Obergefell decision?

Well. Candidly. You can expect the rainbow:

No, silly, not Rainbow Brite!

And NOT Reading Rainbow, either! NO!

Well, then, what rainbow?

No, sorry, not even Skittles!

Here's the only kind of response that you can expect from the Obama White House:

I suppose, given that the "successes" of this administration can be stated only in terms of excesses, this preposterous recasting of the White House as the place of magical wonders is unsurprising.

So, then, what about the Congress, the Legislative Branch of the federal government? What might Congress do to address the Obergefell decision and the lawless Court that uttered it?

Senator Ted Cruz, currently seeking the Republican nomination for the 2016 Presidential election, has called for Congress to propose to the States the adoption of a Constitutional Amendment defining marriage as between a man and a woman. In addition, Senator Mike Lee (R-UT) introduced a First Amendment Defense Act in the Senate, S. 1598 and Congressman Raul Labrador (R-ID) introduced the identical bill in the House as House Resolution 2802, the First Amendment Defense Act.

The possibility of a constitutional amendment, however, was quickly given the wet-blanket-reception by Senate Majority Leader Mitch McConnell. In an interview on TV in his home state, Kentucky, McConnell said, "It isn't going to pass. It's one thing to talk about a constitutional amendment," he said. "We've only done that 27 times in the history of our country. It's not going to pass."

McConnell's observation about the amending of the Constitution is true as far as the number of amendments that have succeeded and over what time. His observation, however, doesn't do much to dispel the fact that 27 amendments in the life of the Nation equates with an amendment every 8 years or so, or, if you treated the first ten amendments, taken together as the Bill of Rights, as a single instance of amendment, that still equates with an amendment every 13 years or so. In either case, based on lifetime averages, we are currently past due for an amendment to the Constitution.

Of course, McConnell's surrender before the first volley only constitutes his frank recognition that he, in the Senate, and Speaker Boehner, in the House, could not muster votes of two-thirds of the members to adopt such a proposed amendment. That super majority is the constitutional requirement under Article V of the Constitution, for the Congress to propose an amendment for consideration by the States:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

McConnell's white flag on an amendment speaks volumes for the Republican leadership on Capitol Hill. Speaker Boehner, while expressing disappointment, appears only to have done that, and thus far, has not laid out any road map for the House to follow in response to the Supreme Court's decision. Boehner stated:

All human beings are created equal by God and thus deserve to be treated with love, dignity and respect. I am, however, disappointed that the Supreme Court disregarded the democratically-enacted will of millions of Americans by forcing states to redefine the institution of marriage. My views are based on my upbringing and my faith. I believe that marriage is a sacred vow between one man and one woman, and I believe Americans should be able to live and work according to their beliefs

So, then, while the iron is hot is when wisdom normally commands that the smith strike. Here, it appears that neither McConnell nor Boehner can see their way to forge an appropriate response or responses to the Supreme Court decision.

Because I was specifically asked by a correspondent to answer McConnell's claim that there was no way to roll back the decision of the Supreme Court, I will use a post that follows this one to lay out a specific set of proposals that are directly responsive to the Supreme Court decision, that Congress possesses constitutional authority to undertake, and that can bring about the result of returning to the States the question of how, within their separate, sovereign borders, they will choose to define marriage.

To close, however, I simply ask Senator McConnell and Representative Boehner, "How is it possible that Buford Pusser could rein in an out of control jurist, and you say you can't?"

Cruz, McCain, George Romney, Ineligible Candidates for President: Drilling Down into the Natural Born Citizen Qualification for the Presidency

If an officer of the general government of the United States were inclined to comport her conduct with the requirements of the Constitution, how could she do so? Among possibilities, reliance on instinct about what the Constitution forbids and allows is an option; another would be a bit more arduous, tasking the would-be upright constitutional officer more than instinct. She could study the Constitution. She could contemplate the Constitution. She could discuss the Constitution with others, including those who shared her views and those who were amused by her views. She could hide the Constitution in her heart, so that she might not sin against it.

That approach might now guarantee success in her venture. It seems, however, better suited to an honest intention to comport with the metes and bounds of the Constitution. Our Nation’s Founders understood a mindset like that. They saw it in the Psalmist.

The Psalmist wrote, “Your words I have hid in my heart, so I might not sin against you.” This is more than placing a verse of God’s Word on the doorpost of the home, more than tucking a copy of it in the folds of his garment. Instead, he has learned God’s Word. He has read and studied it, meditated on it, considered it, incorporated it into his way of thinking. The approach he took suggests that he viewed God’s word much the same way that Jesus’ disciples would later view it. Many that came out to see Jesus, listened to His teaching, and marveled at the wonders that came to pass at His hand, departed from Him because of His saying that unless they ate of his flesh and drank of his blood they would not have life in them. Jesus, when they departed, turned to his closest followers, the disciples, and asked if they too would depart, and they responded:  “Where would we go, Master, only you have the words of life.”

With his understanding enlivened by his study and incorporation of God’s Word, David sought to live a life in accord with God’s design. Such a life, truly lived, would be one free from sin. David imperfectly approached that true living of God’s Word. His affair with Bathsheba, his murder of Bathsheba’s husband, proved that he approached perfection of life asymptotically at best.

Now, our American government officer, and we Americans alike, can and should study, understand, and enliven the Constitution. For the functionary, she must do so to comport with its requirements and limitations. For the citizen, we should do so to hold the general government accountable to the Constitution.

Picking up the Constitution and reading it through is less work than reading Psalm 119. Understanding the Constitution is less work than untangling the “begets” of the Old Testament, or the mysteries of the Book of Revelations. One good technique for acquiring a facility with the Constitution is contextual understanding. Drilling down into constitutional text, meaning and application as the needs of particular moments arise, when addressing either a constitutional crisis or a mere kerfluffle.

Mocked by many, a stalwart ragtag band of activists have pressed their contention that Barack Obama was not constitutionally eligible to be elected President. Beginning in advance of the 2008 general election, and continuing virtually to today, so called “birthers” have challenged Obama’s eligibility to be President. Their arguments are premised on either of two theories that suggest he could not meet the requirement that the President be a “natural born citizen.”

One line of attack against his eligibility, the one most often played in the media, alleges that Obama was not born in the United States. Being born in another country might, in the right circumstances, prevent the child of an American citizen from claiming US citizenship. These “foreign born birthers” are the ones who have fought for the release of the long form birth certificate that Hawaii’s Secretary of State says is located in their documentary vaults.

The other line of attack is more sophisticated. The “foreign father birthers” do not contend that Obama was born in Kenya or anywhere else other than Hawaii. For these “birthers,” including Clinton supporter Phil Berg, Obama cannot be a natural born citizen because his father was a British subject at the time of Obama’s birth, and owed allegiance to a foreign sovereign.

The questions raised by these two groups of birthers, the constitutional contentions upon which their arguments depend – coupled with the high likelihood that questions about constitutional qualifications will continue into the 2016 Presidential season – makes an evaluation of the Qualifications Clause and the Natural Born Citizen provision of it a worthwhile subject of study.

When they ratified the Constitution, the States established a tripartite general government, consisting of a Legislative Branch, an Executive Branch, and a Judicial Branch. These branches the Framers devised in Articles I, II, and III, respectively, of the Constitution. The Executive Branch, the Presidency, is set up in Article II of the Constitution. Included in that Article are a short, frankly disturbingly short, set of constitutional qualifications for election to the Presidency:

"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."

As you see, only Natural Born Citizens are eligible to be elected President. Love for this land, sacrifice in its service, lifetime devotion to its preservation, none of these highly significant characteristics suffices, in the absence of one being a “Natural Born Citizen.” Uncertainties on the question of what is a “Natural Born Citizen” have previously moved the United States Senate to action (more on that in a bit) and launched the cottage industry of challenges to Barack Obama’s qualification to be President.

While the waning days of the Obama presidency might mark the end of an era of pressing consideration of eligibility challenges, quite the opposite is true. First, at least two potential contenders for the 2016 Republican nomination for President face the contention of ineligibility based on questions about their status as “Natural Born Citizens:”  Ted Cruz and Marco Rubio. Second, the disputes over Obama’s eligibility reveals continuing uncertainty about the term “natural born citizen,” its meaning within the Constitution, and the power of the federal government to define – or redefine – that term.

With the 2008 presidential candidacy of John McCain, the United States Senate quietly addressed the question whether McCain was eligible, under the Constitution, to be elected president. Eligibility questions have arisen previously. For example, in 2000, some contended that the Bush-Cheney ticket was ineligible based the fact that Both Bush and Cheney resided in Texas. Contentions about McCain’s eligibility rested on other grounds. McCain was born to an American mother in the Panama Canal Zone during his American father’s naval tour of duty there. The Senate expressed its sense on the question, adopting a nonbinding resolution concluding that McCain was, in fact, a natural born citizen.

Was the Senate, correct? Was John McCain a "natural born citizen” of the United States at the time of his birth? The Senate concluded that he was. As it turns out, the question, although simply stated, does not seem to have an easily identifiable analysis and answer.

We seem to presume that questioned American citizenship is resolved simply by asking whether a person was born in America or became an American through the legal process of naturalization. At a high level of generality, that assumption holds true. Closer inspection of particular cases, however, proves that the presumption does not arise from an always binding principle.

For example, suppose a woman serves as an ambassador to the United States from another nation. During her service, and while present in the United States, suppose she gives birth to a daughter. Customarily, although she is “present” in the United States, that is, physically she is within the territory of the United States, she is not “subject to the jurisdiction” of the United States. This conclusion reflects the Law of Nations by which the exchange of emissaries – ambassadors, consuls, and special representatives – is possible. That customary rule clothes such individuals with immunity to the law of the nation to which they have been dispatched.

So, then, what is the citizenship of a child born to a foreign ambassador present in a foreign land? Again, while state simply, the question is not necessarily answered simply. As it turns out, the answer depends on which of two approaches to citizenship the ambassador’s home country has adopted. Some nations follow a legal principle called jus sanguinus; others follow a contrary principle called jus soli.

Nations that follow the jus sanguinus rule tie citizenship to blood relationships. Nations that follow the jus soli rule tie citizenship to the soil on which one is born. Essentially, the rule of jus sanguinus states that what is important is not where one is born, but who one’s father is. To the contrary, the rule of jus soli states that what is important is not who one’s father is, but, instead, where one is born.

Putting aside the special circumstances of the ambassador’s baby, determining citizenship by birth, has long required clarifying the choice of law in the relevant country. To answer this question for persons claiming status as natural born citizens of the United States, we must discover the rule followed an American law, as well as address any subtleties or variations thereof.

To answer the question, we should consider what rule applied in colonial America to resolve citizenship questions and then discover whether that rule changed with America’s independence from England. We should also consider the adoption of State Constitutions and the United States Constitution: did the Constitution itself, change the governing rules for citizenship? Did the Constitution adopt a definition for “natural born citizen?”  Of course, we should also consider subsequent changes in the law – including, for example, amendments to the Constitution and judicial decisions.

The original thirteen States arose when those thirteen colonies severed their ties to the British Crown. Prior to independence, the colonies lived under the laws of England. In turn, English law derived from two sources: the long accumulation of judicial decisions extending back nearly a millennium, a body of law identified as English Common Law; and statute law, imposed by the Crown or enacted by Parliament, which we can call English Statute Law.

At independence, the Founders in every one of the thirteen newly independent States adopted English Common Law as the law for the determination of legal questions until altered or amended by State Legislatures. So, although the tyranny of England’s Crown so burdened the Founding Generation that they engaged in open rebellion and warfare, their essential identity at the time, as Englishmen, was reflected in their decision to retain the familiar body of decisional law called the English Common Law in their new, independent States. (In fact, as additional States joined the Union, virtually every State, except Louisiana, also adopted English Common Law as the body of decisional law for the determination of legal questions.)

As a historical oddity, some elements in the “foreign father birther” crowd will cite a remark by George Mason, made by him during the Virginia Ratification Convention, to the effect that we are not a common law nation. Mason helped to frame the Constitution. He shepherded the Virginia plan through the 1787 Constitutional Convention in Philadelphia. True, he did say, in a moment of rhetorical flourish, that we were not a common law country.

Mason’s flight of rhetorical flourish has to be taken in its context. When he said this, the thirteen independent States had already existed for 11 years under adopted English Common Law. His flourish cannot undo historical fact, and the Reception of English Common Law was just that, historical fact.

Under English Common Law, there was not a status of “natural born citizen.” Civil roles were defined in relation to the Crown. So English Common Law employed a different, but related, concept: “Natural Born Subject” of the Crown. Under English Common Law, every person born within the British realm had status as “Natural Born Subject,” excepting only the offspring born in the realm of foreign emissaries engaged in diplomatic service in England. This fact of English Common Law is confirmed by reference to Blackstone’s Commentaries on the Law of England. It is also confirmed by parliamentary actions. Parliament, by statute, expanded the status of “natural born subject” to certain persons born abroad, whose foreign birth, by English Common Law, would have deprived them of Natural Born Subject status. (Conferring such status served important purposes. For example, the ability to inherit hereditary lands and titles depended on one’s status as a Natural Born Subject.)

So, when the newly independent States adopted English Common Law (but not English Statute Law), they adopted the relevant legal concept, “natural born subject,” modified to suit their status as independent republics. From the foregoing, you see that England followed the rule of jus soli under English Common Law, and to the extent required by English Statute Law, it followed jus sanguinus. Thus, here in the newly independent States, the governing principle, the English Common Law principle, was jus soli.

Following independence and until the ratification by the States of the Constitution in 1790, citizenship was strictly a matter of state law considerations. Being native born, being naturalized as a citizen, each devolved entirely either on the English Common Law adopted by each State at independence (along with its principle of jus soli), or on subsequent enactments of State legislative bodies.

The States ratified the Constitution with its requirement that one must be a “natural born citizen” to be eligible to serve as President. The States omitted from the Constitution any definition of “citizen” and of “natural born citizen.” 

The States did endow on Congress the power to “provide a uniform rule of naturalization.” Congress immediately put that power to work, enacting the Naturalization Act of 1790. That Act allowed free white persons age 21 and older that had resided in the United States for at least two years to apply for naturalization. Such applications could be made to state courts and would be granted on a court’s satisfaction that the applicant was of good character. In the 1790 Act, Congress also declared that certain offspring born abroad to American citizens were “natural born citizens.”

Subsequent to the ratification of the Constitution, only one change to it touched on any question of citizenship. The Fourteenth Amendment declared that all persons born or naturalized in the United States and subject to its jurisdiction were citizens of the United States and of the State in which they resided.:

"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."

That amendment, on the heels of the War Between the States, redressed an error of monumental dimensions committed by the Supreme Court of the United States. In the case Dred Scott v. Sandford, the antebellum Court struck at the compromise by which the uneasy peace of the Union was being maintained. The Court concluded that Congress had not had the power to restrict slavery in federal territories, and also concluded that Africans in America were not citizens, and could never be citizens.

Still, questions remain.

One question would be how many categories of citizenship do we have in the United States. It appears that, by operation of the Fourteenth Amendment, we have a category of “citizens” that includes all persons who are (a) born . . . in the United States and who are (b) subject to the jurisdiction of the United States. We might call these Fourteenth Amendment citizens.

Persons who are not born in the United States become citizens by naturalization. Naturalization is the legal process of making an alien into a citizen. The Naturalization Act provides that process. We call these statutory citizens.

We have not yet resolved how to move that additional step, the one from citizen to natural born citizen. If we follow the English Common Law, the answer would seem to be persons born in the United States and subject to its jurisdiction are not only Fourteenth Amendment citizens, but they are natural born citizens by operation of the common law. If, on the other hand, we follow appeals made by the “foreign fathers birthers,” then there would be one additional step in determining whether a person that is a Fourteenth Amendment citizen by birth is also a natural born citizen. That additional step would be an inquiry into the person’s parentage, particularly the citizenship of the father of the person. Such an appeal to parentage is commanded by the jus sanguinus principle discussed earlier.

With Canadian-born Ted Cruz, the son of an natural born American citizen mother and a Cuban exile father, announcing his candidacy for the Republican nomination for president in 2016, the questions are worth evaluation and resolution.