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Old 01.12.2016, 09:42 AM   #1
Robert Schunk
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Many of you may be aware of the presidential candidacy of Senator Ted
Cruz, and of the question that Donald Trump has raised regarding his
eligibility for the presidency under the US Constitution. The gist of
Trump's argument is that the Presidential Eligibility Clause of Article
II Section 1 requires that a President be a natural born citizen of the
US, and that the fact of Cruz's having been born in Canada (albeit to US
citizen parents) disqualifies him. In this I believe Trump to be
correct, as the settled law governing this question is United States v. Wong Kim Ark, 169 U.S. 649 (1898), which holds clearly that the English common law principle of jus soli (the right of soil,
according to which one is a subject of the King who is born to a mother
then domiciled within his dominions, regardless of the nationality of
the parents). A principle case cited is Smith v. Alabama, 124 U.S. 478 (1888), to wit: "The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its
history." It is true that Cruz was born a citizen of the US, but this
would be due to an act of Congress applying the civil law principle of jus sanguinis (the right of blood,
according to which one is a citizen according to the nationality of the
parents, regardless of their domicile at the time of birth) to persons
in Cruz's situation, but, although it makes Cruz a statutory citizen, it
does not make him a native born citizen within the meaning of the
Constitution, and, therefor, he fails to satisfy the requirements of the
Presidential Eligibility Clause of Article II, Section 1 of the US
Constitution.

The principle concept here is domicile,
which is the place of regular intended residence of a party. Regardless of your
citizenship, one is a domiciliary of the jurisdiction in which one
regularly resides, without present intention to leave, until one has
established a new domicile. Intention is central to this, so that an
Irishman who intends to emigrate to the US and there establish residence
becomes a US domiciliary as soon as he boards the ship. Let's say the
ship he boards is RMS Titanic. In that case, he dies as a US-domiciled
person even though he never sets foot in his new homeland. Obviously,
being present in a country as a tourist or transient would not establish
domicile, yet about 40 years ago US Senator Lowell Weicker (R-CT) was
urged by many in his party to run for President, but he declined on
precisely the basis that he was born in Paris while his (ultra-rich)
parents were over there doing the Left Bank thing (i.e., they were
living there, not just touring or passing through). That was enough
for them to be French domiciliaries, constitutionally disqualifying
their son for the Presidency.

***

Aside from this issue,
US v. Wong Kim Ark is a fascinating read, and an excellent text on the
law of citizenship. You can read it in full at: www.law.cornell.edu/supremecourt/text/169/649

 
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Old 01.12.2016, 10:18 AM   #2
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This is all very important and also very boring and confusing. Sometimes I don't blame Americans for not knowing how their country operates. What I gather is this: Cruz may or may not be eligible. There is a debate. The Supreme Court may have to rule. But I might be totally wrong.
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Old 01.12.2016, 10:23 AM   #3
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Quote:
Originally Posted by evollove
This is all very important and also very boring and confusing. Sometimes I don't blame Americans for not knowing how their country operates. What I gather is this: Cruz may or may not be eligible. There is a debate. The Supreme Court may have to rule. But I might be totally wrong.

What I'm arguing is that the Supreme Court has already ruled, and that US v. Wong Kim Ark governs this situation so as to constitutionally disqualify Cruz from the presidency.

What I'm here claiming (and probably should have stated explicitly) is that the Constitution itself recognizes two classes of citizen, one "native born" (concerning the presidency) and one mentioned in the Article I requirement for members of Congress, in which a Senator must have attained the age of 30 years and been a US citizen for at least 9 years, and a Representative must have attained the age of 25 years and been a US citizen for at least 7 years. The latter, referring to a term of citizenship shorter than one's age, clearly includes citizenship by naturalization, and naturalization being controlled by Congress under Article I Section 8, implies a category of statutory citizenship distinct from native=born citizenship. Thus Cruz was born a statutory citizen of the US, but not a common-law citizen as required by Article II Section 1 as applied in US v. Wong Kim Ark.
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Old 01.12.2016, 10:24 AM   #4
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I agree this issue confused me because in school we were taught "native born" not "natural born"..

Either way its a non issue as this mercurial fearmongering asshole isn't sniffing anywhere near presidential however i find it bitterly ironic that Republicans spent almost the entirety of this presidency accusing the president of being part of some kind of conspiracy even when it is clear he was born on US soil meanwhile this Cruz asshole was most definitely NOT born on US soil and he gets a lawyerese semantics pass? What dishonest hypocrites!
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Old 01.12.2016, 10:43 AM   #5
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Quote:
Originally Posted by SuchFriendsAreDangerous
I agree this issue confused me because in school we were taught "native born" not "natural born"..

Either way its a non issue as this mercurial fearmongering asshole isn't sniffing anywhere near presidential however i find it bitterly ironic that Republicans spent almost the entirety of this presidency accusing the president of being part of some kind of conspiracy even when it is clear he was born on US soil meanwhile this Cruz asshole was most definitely NOT born on US soil and he gets a lawyerese semantics pass? What dishonest hypocrites!

You're correct, and, indeed, I misspoke when I used the term "natural born" when I should have used "native born", which is the Constitutional text. Thanks for pointing that out!

And I also agree with the hypocrisy of certain Republicans, although the person who first raised the issue was Donald Trump, and his main supporter is John McCain, who would also be excluded by some birthers (as would Barry Goldwater in 1964), although I believe that strict a definition of native birth to be unfounded.
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Old 01.12.2016, 11:39 AM   #6
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No actually the constitution DOES say "natural born" its just i always understood "natural born" as implying "native born" in the context of the presidency. Regardless of who started the birther drama it became very wide spread Republican mantra
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Old 01.12.2016, 11:44 AM   #7
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Quote:
Originally Posted by SuchFriendsAreDangerous
No actually the constitution DOES say "natural born" its just i always understood "natural born" as implying "native born" in the context of the presidency. Regardless of who started the birther drama it became very wide spread Republican mantra

You' re right again.. (I'm doing this in kind of a hurry! )

And it does mean "native born" according to US v. Wong Kim Ark.

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Old 01.12.2016, 12:17 PM   #8
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I hate to agree with anything Donald Trump says. If Donald Trump said the sun was going to rise tomorrow morning, I would call Las Vegas to see what the odds were. But even a blind pig sometimes finds an acorn. I agree with him, and certainly with Robert Schunk's position and citation of legal authority.

I also think John McCain isn't a natural born American as required by the Constitution. But since he never (thank God) became president, the issue is now moot.
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