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.”

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.