Balkinization: Our Second Class Citizenship Clauses

Comments:

I'm very pleased with Sandy's "so be it" in lieu of his earlier post's " ... meriting revolting in the street s... " if the Court were to rule against Cruz as a "natural born Citizen." I may have been a bit intemperate with some of my remarks on the earlier post but I admire Sandy so much and agree with him much, perhaps most, of the time (although not with some of his remedies for political dysfunction). I would hope the Court would not take such a case because of its political implications. As I noted in the earlier post, I welcomed Joseph Fishkin's post. [Note: Fishkin used ito dentify as Joey in his posts not that long ago but changed to Joseph. I imagined this was upon the advice of others. It's tough for a geezer like myself to use Joseph instead of Joey. While he is young, he has made his constitutional bones at this Blog and elsewhere. So thanks to Joey for bringing balance to this issue.]

I've been watching TV on MLK, Jr. Day, including some of his speeches and the movie "King." It's been a tough day reliving parts of the civil rights movement, but one of its lessons was non-violent civil disobedience to address centuries of unjust treatment in the history of the colonies and America. The patience of Blacks in America over these many years is in contrast to violent civil disobedience of today that has been fostered by Trump and Cruz as well as other 2016 GOP presidential candidates.

Our Constitution is complex, as a result of which its interpretation/construction is complex. But it's what we got. And our history is not always clear and often subjected to revisionism. Much of our political dysfunction has racial connections, especially with the changing demographics. Hopefully at some point in the words of another King "Can't we all just get along?"
.

# posted by

Shag from Brookline : 9:18 PM

"Does this possibly make sense, save to a certain form of demented "rule of law" purist who believes that texts written in 1787, without the semblance of genuine deliberation and reflecting a casual nativism, should be given their most restrictive possible meanings even if there are acceptable ways to interpret them in a more inclusive manner?"

Yes. Yes, actually it does make sense.

It makes sense because, if you really don't like what the Constitution says, and that dislike is widely shared, rather than being the opinion of a minority, you can change it by amendment.

In fact, going through the Article V process is HOW we determine if the desire for a change is widespread. We don't just amend the Constitution on the basis of informal polls, or the intuitions of jurists and professors. We have a formal process for doing it.

Just as, if you bribe a bank teller to give you money, the presumption is that you didn't actually have money in the bank to withdraw, if you achieve constitutional 'change' without using Article V, the presumption is that you did it that way because you didn't have enough support to do it the legal way. 'Informal' constitutional change is how you IMPOSE change on a country that doesn't actually want it, you resort to it when you know your change would be rejected if people were given a choice in the matter. People who know the public supports them pursue amendments.

And just to head off a common complaint, there's a common misapprehension about super-majority requirements in legislatures, that they require extremely high levels of public support to achieve. Nope.

If a measure is supported by 51% of the population, but uniformly across a nation, every legislator will be chosen from a district where 51% of the population favors it, and a super-majority in the legislature will be easy to achieve. Even tepid support in most of the US will get you over the hurdle.

Contrariwise, if 100% of the people in half the districts support a measure, and only 45% of the people in the other half, you'll have over 70% of the people favoring it, and no chance of assembling a legislative super-majority.

Legislative super-majority requirements are not tests to see if the public overwhelmingly supports something. They're tests to see if that support is widespread, or only regional. And this is perfectly appropriate in a federation, where you don't want one region lording it over the rest of the federation, just because they feel strongly about something. Federations are only supposed to be doing things if they have widespread support across the federation.

We don't want the US to be like the late, unlamented USSR, run at the expense of part of the federation, for the benefit of a different part. We're all in this together, supposedly, and our central government is only supposed to be doing things that the country as a whole supports.

Including amendments.

# posted by

Brett : 6:23 AM

The drafters of the Constitution did not want the US duplicating the British practice of importing kings.

Somehow this limitation to "second class citizenry" has not discouraged immigration into the US.

# posted by

Bart DePalma : 8:19 AM

Brett seems to be dealing with bad meth - excuse me - math. Be that as it may, his:

"We're all in this together, supposedly, and our central government is only supposed to be doing things that the country as a whole supports."

demonstrates that he doesn't understand representative governance.

And SPAM I AM! neglects to mention that the drafters of the 1787 Constitution did not define what constitutes a "citizen" and in Article I did not enumerate as a power of Congress defining what constitutes a "natural born Citizen" as a presidential qualification in Article II.

As for not discouraging immigration, this was a means whereby immigrants could sire offspring in America who via the first sentence of Section 1 of the 14th A could be qualified under Article II. Of course SPAM I AM! as troll at this Blog for "Citizen Cruz" fails to mention the current Republican xenophobia.

Brett would take us back to his good old Roaring Twenties days whereas SPAM I AM! would take us back to the late 19th century The Gilded Age. Time marches backwards for them in lockstep - at least for part of the way.

# posted by

Shag from Brookline : 9:13 AM

Shag, I don't think you understand federations. Or, more realistically, you just don't care for the US being one. Still, constitutionally, that's what the US is.

# posted by

Brett : 10:21 AM

I believe in America as a Union, which I take as the same as a federation (as opposed to a confederation as under the Articles). Brett's thinking is more of a confederation. And I acccept federalism as it has developed over the years despite the Court's conservative 5's recent limitations. But Brett doesn't understand representative form of governance. Ask a Republican Senator or House member whether he favors his/her constituency over differing views from constituencies in other states/districts. Look at the votes for House members in the aggregate nationwide between Democrats and Republicans. Frankly, it seems Brett is resigning from his anarcho libertarian state of mind. And why are the Red States the ones that receive more in funding from the central government than they pay in? America is one in its treatment of crises in Red States created by nature or by Governors on the Snyde taking us back to the Flintstones.

# posted by

Shag from Brookline : 11:22 AM

Per Brett, Prof. Levinson noted: "If it were "absolutely necessary" to read it to disqualify Cruz (or McCain), so be it." So, SL doesn't want to rob banks.

Brett quotes SL, but (sorry, as is his wont) skips over something. I'll quote it for emphasis:

their most restrictive possible meanings even if there are acceptable ways to interpret them in a more inclusive manner

Where is the rule that the "legal way" of interpreting the Constitution requires "their most restrictive possible meanings" when there are other ways? Brett might disagree with the merits of the arguments, but such is the name of the game -- LOADS of cases split reasonable minds. Being wrong isn't robbing banks.

===

The link to the article on Hiram Revels:

http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1523&context=articles

I think the duration rules are not outrageous -- at least for the right to be a member of Congress, it can very well be appropriate that some time period (perhaps the one granted is too long) to get familiar with the United States.

Hiram Revels btw was born free in North Carolina. Reading Curtis' dissent in Dred Scott, it is actually possible that free blacks could have been natural born citizens there. But, anyways, unlike some newly freed slave, there were various reasons to think Revels was qualified for Senate. For instance, he had voted in Ohio. Other reasons were provided. There being no "absolutely necessary" reason to disenfranchise him, he was rightly seated.

As to freed slaves, the injustice of not having them be members of Congress is duly noted, but it's somewhat hypothetical since if blacks were elected here, they were likely the elite who were not recently freed. I'll take the hardest case -- yes, it is not outrageous to think a few years might be necessary for a person born in slavery to acclimate to being a full citizen before they can be a U.S. senator.

Finally, as to the Canada example, the provision is "nine Years a Citizen of the United States" for senators; perhaps, SL can explain how we an interpret the provision in a more inclusive manner to allow Canadians made U.S citizens three years earlier. Perhaps, equal protection would require it given developments, including the Civil War and the passage of the 14A, that called into question racial and ethnic limitations of that sort? The Due Process Clause, which has an equal protection component, AMENDED Art. I after all.

But, I'll have to see -- SL is not saying we should "rob banks" here though doesn't quite explain his reasoning contra some crystal clear case such as Granholm not being President (horrible in his view, but the law).

# posted by

Joe : 11:53 AM

Brett,

The Founders thought carefully about the government they were setting up. They knew full well reasonable people would disagree about Constitutional provisions (it happened while fashioning it!), so they set up a system not only to amend the constitution but also to empower a judiciary which would be chosen by the political branches to interpret it. It's not some violations of the rules to win elections and put people on the bench who interpret the Constitution in a way different than your opponents, it's part of the game itself.

"in a federation, where you don't want one region lording it over the rest of the federation"

1. Federation? We tried that and rejected it, didn't we? Opted for a nation. E Pluribus Unum.

2. I've always found people who fret more about 'regions' being lorded over than about 'people' or a majority of the actual population of a nation being lorded over. Places over persons I guess.

3. I'm also a bit perplexed at what's so horrible for Brett about the national government and courts overruling state government and courts. The two subjects I recall him being most animated about here are gun rights and affirmative action, and in both cases it is the federal courts that have been overruling state and local governments in those two areas. Does he see those events as bad things?

# posted by

Mista Whiskas : 1:15 PM

"The drafters of the Constitution did not want the US duplicating the British practice of importing kings."

And yet you've been shilling to give us a Canadian President...

# posted by

Mista Whiskas : 1:17 PM

"empower a judiciary which would be chosen by the political branches to interpret it"

or in some cases, other groups spelled out by the Constitution such as having the proper contours of "try" in impeachments determined by elected members of Congress

# posted by

Joe : 1:25 PM

And yet you've been shilling to give us a Canadian President...
# posted by Blogger Mista Whiskas : 1:17 PM

The fact that he's Canadian is the only attractive thing about him...

# posted by

Anonymous : 1:59 PM

"1. Federation? We tried that and rejected it, didn't we? Opted for a nation. E Pluribus Unum."

Riiight. That's why we call it the "federal" government, and have an amendment specifically stating that federal government is limited to enumerated powers, with everything else a state matter. Because it's not a federation.

"2. I've always found people who fret more about 'regions' being lorded over than about 'people' or a majority of the actual population of a nation being lorded over. Places over persons I guess."

People live in places. They even have interests that are driven by the places they live.

"3. I'm also a bit perplexed at what's so horrible for Brett about the national government and courts overruling state government and courts."

I don't generally have a problem with the courts overruling state governments. Most of the time that's a positive thing, as they're telling the state it can't do something, and telling any level of government it can't do something is usually a pro-liberty thing.

The bigger problem usually the federal courts *failing* to overrule the federal government, often when the federal government is sticking its nose in someplace it's not entitled to. Of course, you have to expect a judiciary to show undue deference to the people who chose judges.

# posted by

Brett : 2:14 PM

I have to say that the opinion in Rogers v Bellei, cited by John Mikhail, surprises me. I expected modern case law to hold that children born abroad of US citizens were "natural born". The fact that the Court found them "naturalized" seems to me a real blow to Cruz. Perhaps there's some later case law, or a revised statute, which might alter the outcome?

# posted by

Mark Field : 2:22 PM

Rogers v. Bellei summarizes the laws on the topic. The 1790 law:

"And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States. . . ."

By the terms of this statute, and the Supreme Court opinion noted the rules were "liberalized" over time [helping Cruz, since once upon a time, his mother would have lost her citizenship while being born a foreigner and thus Cruz might be SOL], those born abroad "shall" be considered natural born citizens.

The opinion seems to suggest that such individuals' citizenship is left to a congressional legislation & the original law seems to be an application of congressional naturalization power. But, those born beyond the sea etc. were still considered natural born. So, just how bad is it for Cruz?

# posted by

Joe : 3:22 PM

The Supremes decided to take the Obama appeal of the injunction entered against his dispensation waiving immigration law for millions of illegal aliens, but ordered the states and the Administration to address an additional question: “Whether the Guidance [Obama's dispensation) violates the Take Care Clause of the Constitution, Art. II, §3.”

http://www.supremecourt.gov/orders/courtorders/011916zor_l5gm.pdf

Has Anglo-American law dealt with a royal dispensation case since Parliament deposed King Charles I and enacted the English Bill of Rights in 1689?

# posted by

Bart DePalma : 3:25 PM

"born a foreigner" should be "married to a foreigner"

note too that Cruz's father did reside in Texas beforehand ... the Supreme Court as late as 1961 (with but one justice dissenting w/o opinion) explicitly upheld the rule treating mothers different from fathers to deny citizenship

# posted by

Joe : 3:25 PM

Joe, yes that statute had that language, but all 9 Justices agreed that Bellei was naturalized, not natural born. Quoting from the dissent (my emphasis):

"However, the clearest expression of the idea that Bellei and others similarly situated should for constitutional purposes be considered as naturalized citizens is to be found in United States v. Wong Kim Ark, 169 U.S. 649 (1898):

"The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere [401 U.S. 815, 841] fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts." 169 U.S., at 702 -703.

The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization."

# posted by

Mark Field : 3:42 PM

Well, you (hopefully!) learn something new every day. Much to my surprise, Cruz probably isn't a natural born citizen under current precident.

You'd think people contemplating spending a fortune on becoming President would check these things, first.

# posted by

Brett : 3:56 PM

Maybe that bacon Cruz cooked on his machine gun was Canadian Bacon - and he cooked it in TEXAS! As to Brett's closing line, a reminder that it is usually OPM ("other people's money).

# posted by

Shag from Brookline : 4:14 PM

Joe said...Rogers v. Bellei summarizes the laws on the topic. The 1790 law:

"And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States. . . ."

This law was enacted after the Constitution was ratified and could not have defined the constitutional term "natural born citizen."

# posted by

Bart DePalma : 4:38 PM

"People live in places. They even have interests that are driven by the places they live."

Is that responsive? That's true for everyone, it doesn't seem to undercut the idea of majority rules.

"when the federal government is sticking its nose in someplace it's not entitled to"

What's an example of that that really irks or bothers you? As I said, from what I recall from comments here it's local measures-affirmative action and gun control-that seemed to draw most of your fire.

# posted by

Mista Whiskas : 5:00 PM

"This law was enacted after the Constitution was ratified and could not have defined the constitutional term "natural born citizen.""

You said this on the other thread:

"Original meaning interpretation would freeze the meaning of a word or term as it was understood when the constitution, law, contract or will was put into effect."

When the Constitution was written the British statutes you've been relying on re: natural born subjects/citizenship being conferred on the children of citizens abroad were applicable only to the children of British citizen *fathers* not mothers. As you know, Cruz' father was not a US citizen.

# posted by

Mista Whiskas : 5:10 PM

The dissent also argues the likely original understanding was that "purely statutory grants of citizenship as forms or varieties of naturalization."

Okay, let's say the 1790 Act was a "variety of naturalization." All the same, it said people are born abroad in certain cases are "natural born" citizens. This is not an absurdity -- they are by birth, nothing else, pursuant to the statute in question a citizen. The 14A doesn't say "natural born" ... it says "born." Now, maybe, the opinion on what "natural born" meant changed over time from 1790 to 1868. That's unclear to me and the cases don't really clarify the matter.

"There is reason to believe, therefore, that the phrase includes persons who become citizens at birth by statute because of their status in being born abroad of American citizens." [cited]

https://www.law.cornell.edu/anncon/html/art2frag5_user.html [Congressional Research Service Annotated Constitution]

See, e.g., this article -- http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2068&context=mlr [page nine etc.]

[The article in part notes that the 1790 Act "defined" the term following how it was then understood to apply using English precedents etc.]

The argument that "natural born" cannot rely on "purely statutory grants" is tricky too since U.S. citizenship in antebellum times appears to have rested on state law -- if you were a citizen of a state, which could be a matter of changable statute, you were a federal citizen.

The matter is at best confused.

# posted by

Joe : 5:11 PM

Blackstone explains:

"But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception"

William Blackstone, Commentaries 1:354, 357--58, 361--62

# posted by

Mista Whiskas : 5:15 PM

The issue with any originalist argument is the first sentence of the 14th A. According to Wong Kim Ark (quoted in Rogers majority opinion), this was "'declaratory of existing rights, and affirmative of existing law,' so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U.S., at 688.

Then follows a most significant sentence:

'But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.'"

# posted by

Mark Field : 5:39 PM

Just to add to my comment above, the majority also states:

"The Constitution as originally adopted contained no definition of United States citizenship. ... The historical reviews in the Afroyim opinions provide an intimation that the Constitution's lack of definitional specificity may well have been attributable in part to the desire to avoid entanglement in the then-existing controversy between concepts of state and national citizenship and with the difficult question of the status of Negro slaves.

In any event, although one might have expected a definition of citizenship in constitutional terms, none was embraced in the original document or, indeed, in any of the amendments adopted prior to the War Between the States."

The dissent does not dispute this. Worse yet for Cruz, it says this about the 1790 Act:

"Congress is empowered by the Constitution to "establish an uniform Rule of Naturalization," Art. I, 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen. The first congressional exercise of this power, entitled "An Act to establish an uniform Rule of Naturalization," was passed in 1790 at the Second Session of the First Congress. It provided in part:

"And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States." 1 Stat. 103, 104.

This provision is the earliest form of the statute under which Bellei acquired his citizenship. Its enactment as part of a "Rule of Naturalization" shows, I think, that the First Congress conceived of this and most likely all other purely statutory grants of citizenship as forms or varieties of naturalization."

# posted by

Mark Field : 6:50 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 7:23 PM

Mr. W: "When the Constitution was written the British statutes you've been relying on re: natural born subjects/citizenship being conferred on the children of citizens abroad were applicable only to the children of British citizen *fathers* not mothers. As you know, Cruz' father was not a US citizen."

Interesting. Do you have a cite to the law?

Not commentaries, the law.

# posted by

Bart DePalma : 7:25 PM

I find the whole thing far from clear as far as doctrinal application to the current debate but citing a 1790 law that says "And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens" helps Cruz.

There is some stuff that hurts him, but that surely helps him. He cited that himself in public statements.

As the article cited by CRS notes, either naturalization might still by constitutional meaning include natural born as applied to some individuals or the 1790 tacked on to a general naturalization statute what "shall be considered" to be the current law of the matter. See, e.g., Mr. W's citation.

This could be the "existing law" as late at 1868 and if the 14A "has not touched the acquisition of citizenship by being born abroad of American parents," that should be the 1790 law holds. After all, it hasn't been touched!

This debate isn't new -- George Romney was suggested as a possible presidential candidate, he was born in Mexico, and his qualifications were debated. This later article argues Wong Kim Ark doesn't have to deny Romney or Cruz:

http://blogs.gonzaga.edu/gulawreview/files/2011/01/Lohman1.pdf

This CRS article in 2011 argues those born abroad to citizen parents can be natural born too:

http://www.fas.org/sgp/crs/misc/R42097.pdf

(see, e.g., pg 37)

Tuan Anh Nguyen v. INS (2001), e.g., "refers to naturalization, which in turn is defined as "conferring of nationality of a state upon a person after birth." And, Justice Breyer and two other justices in another related case [Miller v. Albright] noted:

The Court did not say it intended that phrase to include statutes that confer citizenship "at birth." And Congress does not believe that this kind of citizenship involves "naturalization." 8 U. S. C. § 1101(a)(23) ("The term `naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever".

They cited the two cases MF cites. So, what does this tell us about the law today?

# posted by

Joe : 8:00 PM

Bart,

Happily.

"That all Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively, shall and may, by virtue of the said recited Clause in the said Act of the seventh Year of the Reign of her said late Majesty, and of this present Act, be adjudged and taken to be, and all such Children are hereby declared to be natural-born Subjects of the Crown ofGreat Britain, to all Intents, Constructions and Purposes whatsoever."

British Nationality Act, 1730

1730 (4 Geo. 2) C A P. XXI.

# posted by

Mista Whiskas : 8:04 PM

This could be the "existing law" as late at 1868 and if the 14A "has not touched the acquisition of citizenship by being born abroad of American parents," that should be the 1790 law holds. After all, it hasn't been touched!

The Court in Rogers notes that the 1790 Act was replaced several times before the Civil War. For a long period (1802-1855) the naturalization law did not provide for any citizenship to those born overseas to American fathers. Rogers stated that this was within Congressional power. In addition, there's the language from the dissent which I quoted above.

# posted by

Mark Field : 8:14 PM

There is, I think, another problem with the claim that the phrase "natural born" includes those made so by statute. Art. II allows 2 different types of citizen to become President, viz. "natural born" and "a Citizen of the United States, at the time of the adoption of this Constitution". The latter phrase could only apply to someone made a citizen by statute, which means that it would be redundant if "natural born" already included that.

# posted by

Mark Field : 8:20 PM

The "existing law" sounds like Congress retained the discretion to declare natural born citizens could be born abroad. Such people retained the "right" to have natural born citizenship recognized per the 1790 law. Of course, the denial of a traditional class of natural born citizens might have been illegitimate too.

As to the dual provision in Art. II. I don't think "a citizen of the United States, at the time of the adoption of the Constitution" could only apply to someone made citizenship by statute. It might, e.g., arise from the nature of citizenship itself. Or, a treaty. Or, perhaps something else.

Anyway, the latter provision protects those a citizen as of the adoption date, natural born or not. Later, only "natural born" citizens can be President. This might include statutorily defined natural born citizens by laws passed AFTER the adoption of the Constitution. Not redundant.

Finally, most importantly perhaps, it sounds like case law after Rogers v. Bellei does color the question. Key issues at least seem to be open to debate.

# posted by

Joe : 8:52 PM

Let's see if I can simplify the syllogism here.

In Wong Kim Ark the Court specifically said: "Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."

John Mikhail quoted the cases which state that those made citizen by naturalization are not eligible to be president:

“the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.” Schneider v Rusk

“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency.” Luria v US and Baumgartner v US.

Cruz, as a "foreign born child of a citizen" could be a citizen only by naturalization (Wong Kim Ark). If he was naturalized, he can't be President. Schneider; Luria; Baumgartner.

# posted by

Mark Field : 9:17 PM

As to Wong Kim Ark, in 1790, Congress declared those born abroad were natural born citizens. This might have been by "naturalization," not naturalization (Breyer et. al. if applicable at birth) or simply they were natural born by existing rule. The dissent flagged the latter point & it just might be that Kim Ark is wrong as to them. I still don't think the opinion totally faced up to the fact that their rule clashes with the law in 1790.

"Native born" and "natural born" has often been deemed synonymous but the 1790 law shows not necessarily quite so. Apparently, the 1790 law thought 'native born' included birth from natives even if it took place abroad. So, does statutory law today. Again, I can see how the excerpt, which might be dicta, complicates things.

John Mikhail is agnostic about the ultimate question but thinks Cruz needs to respond. Yeah. Since he quotes pre-1968 cases, I can see why some thought G. Romney was ineligible. But, others did not, including those aware of precedent.

# posted by

Joe : 9:40 PM

If Wong Kim Ark is wrong, then so is Rogers v Bellei. After all, Congress can't impose conditions subsequent on natural born citizens (I assume we all agree with that). The Court held such conditions proper in Bellei only because the guy was naturalized under Wong Kim Ark. Cruz would be in the same boat.

And remember: all 9 Justices in Bellei agreed that the guy was naturalized.

# posted by

Mark Field : 10:01 PM

Mr. W:

You make a good argument concerning the status of British law at the time of the Constitution's ratification. Cruz would not be an natural born citizen under that British law because his father was not a citizen.

Cruz would have been a natural born citizen under the Naturalization Act of 1790 because his foreign father was a resident of the United States before Cruz's foreign birth. "And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States. . . ." But, was this statute a codification of the American understanding of of citizenship at the time of the ratification or was it a change?

Another possibility that we have not discussed is whether the 14th Amendment amended the meaning of natural born citizen in the original Constitution.

The 14A does divide citizens into two categories - those born and those naturalized into citizenship and grants Congress the power to enforce these categories. Art. I already granted Congress has the power "to establish a uniform rule of naturalization." The 14A very arguably grants Congress the power to also define natural born citizenship and therefore that qualification to be President.

The 14A's EPC would also prohibit the British law at the time of the ratification granting natural born citizenship to the foreign born children of male citizens with foreign mates, but not female citizens with foreign mates, and again grants Congress the power to enforce equal protection as it did by enacting the law which gave Cruz citizenship as the foreign born child of an American mother.

I admit that your quotation of the actual British law at the time of ratification made this entire issue far more complicated than I originally thought after reading the Harvard article I cited in an earlier thread. The Harvard authors misstated the British law at the time. However, I believe that the 14A likely amended what is means to be a natural born citizen.

# posted by

Bart DePalma : 10:16 PM

"I believe that the 14A likely amended what is means to be a natural born citizen."

Oh, this is too good to be true. Perhaps you have short term amnesia? Because this is what you wrote on the previous discussion on this matter here:

"The 14A has nothing to do with this question, Mr. W."

It seems you'll say anything to get your preferred Canadian elected President of this great nation.

# posted by

Mista Whiskas : 10:35 PM

You also said, in response to me bringing up the 14th Amendment on this matter:

"When determining the meaning of an old legal term of art, you go first to the law of the time....The 14A was drafted decades after the Constitution and does not purport to define the qualifications for president."

and

"The 14A in no way outlawed the long standing rule"

# posted by

Mista Whiskas : 10:37 PM

"So be it."

# posted by

Shag from Brookline : 11:35 PM

Channeling BB "One more time!" (in the manner of Count Basie):

"Sarah Palin's endorsement of Donald Trump is great news for former POW John McCain."

# posted by

Shag from Brookline : 12:03 AM

Mr. W:

You caught me changing my mind. Congratulations. That does not happen very often.

The 14A does not directly address presidential qualifications, but after closer reading and some additional research, I noted that it does limit the types of citizenship to those born ("natural born citizen") and those naturalized into it, and appears to grant Congress the power to define both of them.

Do you disagree?

# posted by

Bart DePalma : 9:15 AM

SPAM I AM! concedes but reserves in a strained manner with:

" ... and appears to grant Congress the power to define both of them."

for one who professes to be a textualist.

But I'll leave this to Mr. W to pluck a few more hairs from the chinny-chin-chin of SPAM I AM!

Of course SPAM I AM! is well aware of how Congress, especially the Senate, would not be prepared to accommodate Cruz even if it did have the power.

# posted by

Shag from Brookline : 9:34 AM

BD: " ... and appears to grant Congress the power to define both of them."

Shag: "for one who professes to be a textualist."

More precisely, the text in Sec. 5 of the 14A combined with Article I, Sec. 8, Cl. 4.

# posted by

Bart DePalma : 9:43 AM

Here precisely is the text of Section 5 of the 14th A:

"Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Since when is enforcement the same as the power to define? Yes, with respect to naturalization, Article I empowers Congress.

Here's the precise language of the first sentence of Section 1 of the 14th A:

"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."

Where is the wiggle room for Congress to define "persons born" in America any differently than as spelled out in this sentence? As to naturalization, that's enumerated in Article I.

Now more importantly, can SPAM I AM! continue to support Cruz as a result of his epiphany for President?

# posted by

Shag from Brookline : 10:10 AM

Shag: Since when is enforcement the same as the power to define?

Are you serious? How can you enforce something which you cannot define?

This is similar to the use of the term "due process," which is an invitation for Congress and Courts to define our procedural rights.

# posted by

Bart DePalma : 10:39 AM

Congress can, to the extent enumerated powers in Article I permit, provide for procedural rights, which can then be tested as to whether such procedural rights comport with the meaning of "due process" under appropriate clauses of the Constitution as amended.

But note that SPAM I AM! ducks my question:

"Now more importantly, can SPAM I AM! continue to support Cruz as a result of his epiphany for President?"

Can he continue shilling for Cruz? Or is he awaiting Congress to define "persons born ... in the United States ... " to include Canada?

# posted by

Shag from Brookline : 11:23 AM

If Wong Kim Ark is wrong

It might well be on this specific point.

then so is Rogers v Bellei. After all, Congress can't impose conditions subsequent on natural born citizens (I assume we all agree with that). The Court held such conditions proper in Bellei only because the guy was naturalized under Wong Kim Ark. Cruz would be in the same boat.

What about dual nationals? the Court observed that a native-born citizen who had acquired dual nationality during minority through his parents' foreign naturalization abroad did not lose his United States citizenship "provided that, on attaining majority, he elects to retain that citizenship and to return to the United States to assume its duties." Sounds like a subsequent condition on natural born citizens.

And remember: all 9 Justices in Bellei agreed that the guy was naturalized.

Justices later appear to have voiced a different view of things and not just the one who had at least one grandchild born abroad. The matter seems ripe for clarification especially when the Congressional Research Service report in 2011 summed up current law and policy to allow natural born citizens to be born abroad in various situations. For instance, an appellate court noted:

No one disputes that Marguet–Pillado's requested instruction was “an accurate statement of the law,” in that it correctly stated the two circumstances in which an individual born in 1968 is a natural-born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements.

https://casetext.com/case/us-v-marguet-pillado

Do you have any opinion on the immigration cases cited? The opinions of Kennedy, Ginsburg, Breyer et. al. seem relevant today.

# posted by

Joe : 11:58 AM

What about dual nationals? "the Court observed that a native-born citizen who had acquired dual nationality during minority through his parents' foreign naturalization abroad did not lose his United States citizenship "provided that, on attaining majority, he elects to retain that citizenship and to return to the United States to assume its duties." Sounds like a subsequent condition on natural born citizens.

I'm pretty sure Afroyim v Rusk changed that.

It might well be on this specific point.

That's always possible, but no case that I know of has said so, and the Court continues to cite Wong Kim Ark favorably, even in Miller v Albright. Neither it nor Marquez-Pillado deal with jus soli; both involve cases of jus sanguinis. Neither suggests in any way that those born outside the US and naturalized would qualify to be President. I mean, the opening of Miller specifically states

"There are “two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person “born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” 169 U.S., at 702. Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress. Id., at 703."

# posted by

Mark Field : 1:19 PM

While our dynamic dyslexic duo Brat and Bert seem to accept that Cruz is not a "natural born Citizen," the Fat Lady" [the Court] has yet to sing, assuming the issue reaches the Court. In the past I mentioned my ConLaw Prof. Thomas Reed Powell (Fall of 1952) who I ran into a year later between classes and asked him how he thought the Court might rule on an issue pending in federal courts [I think it had to do with baseball]. He responded, in effect, "I stopped trying to figure out long ago about how those bozos might rule on anything." Those who follow the Originalism Blog might note that it has not addressed John Mikhail's post at this Blog on 1/19/16. And there probably at least 100s of ConLaw scholars we have yet to hear from.

So we can look forward, I assume, to much more back and forth at this and other blogs on the status of Cruz's Canadian Bacon. All of a sudden I crave Eggs Benedict (sans machine gun).

Hopefully the issue will become moot before originalists' knickers get twisted in constitutional knots as some of us contemplate whether Sarah Palin is a second coming of Marla Maples in Trump's life. I loved the NY tabloid front page phot of the Donald and Sarah with the "I'm with stupid" pointing by each.

# posted by

Shag from Brookline : 1:46 PM

I enjoyed Jack Balkin's interview of Sandy on the latter's new book on the Federalist Papers. Earlier, I enjoyed the video that Joe provided a link to on another thread of a panel that included Sandy on his book.

I thought of the late Pauline Maier's "Ratification;" and other related writings. What influence did the Federalist Papers have upon the many ratifiers from the states that got the 1787 Constitution ratified? There have been several articles on this and Prof. Maier addressed this as well. If such influence was not that significant for the ratifiers, does this put the Federalist Papers in a less influential role not only back then but also today? (I'm thinking of the frequency of references to the Federalist Papers in decisions of the Court in more recent years.

This brought to mind discussions at this and other legal blogs last year on the celebration of Magna Carta's 800th anniversary, with many references to the actual importance of the words of the Magna Carta and its legal revival and revisionism several centuries late by Lord Coke. The 800th anniversary of the Federalist Papers would be celebrated in 2587-8. At that celebration, what may be said of the Federalist Papers?

Do we over-venerate ancient documents and writings?

# posted by

Shag from Brookline : 2:30 PM

I quoted from Bellei itself in answer to your "conditions subsequent" point, but let's say [without Blackmun saying so when quoting the earlier opinion] it was overruled by Afroyim v. Rusk. Afroyim v Rusk involved a naturalized citizen.

The "premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive" as a general matter (right to be POTUS an exception) still held. Bellei to me relied on residence in the U.S. as the difference -- the 14A cites that for both "born and naturalized" though. Born v. naturalized was not the dividing line.

As to the later opinions not saying those "born outside the US and naturalized would qualify to be President," the argument is that Cruz being born in Canada must mean he was "naturalized." The later opinions do suggest otherwise.

Marguet–Pillado said:

an individual born in 1968 is a natural-born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements

A natural born citizen, the POTUS qualification at issue, was assumed to include those born outside the U.S.

Tuan Anh Nguyen v. INS (2001) (a better cite since it clearly is an opinion of the Court) concerns "the acquisition of United States citizenship by persons born to one United States citizen parent and one noncitizen parent when the parents are unmarried and the child is born outside of the United States or its possession." Basically Cruz except for the married part, which shouldn't be an issue for our purposes. The opinion refers to naturalization, which in turn is defined as "conferring of nationality of a state upon a person after birth." The statute "ensures equivalence" between an overseas birth to a citizen and one on U.S. soil.

Not "at" birth. And, Justice Breyer and two other justices in another related case [Miller v. Albright] argued:

The Court did not say it intended that phrase to include statutes that confer citizenship "at birth." And Congress does not believe that this kind of citizenship involves "naturalization." 8 U. S. C. § 1101(a)(23) ("The term `naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever".

That is, Cruz was not "naturalized" because the term means conferring nationality "after" birth.

# posted by

Joe : 2:31 PM

"Do we over-venerate ancient documents and writings?"

probably so but honoring need not require that -- e.g., truly honoring the Bible might warrant recognizing its human flaws

# posted by

Joe : 2:33 PM

Bellei to me relied on residence in the U.S. as the difference -- the 14A cites that for both "born and naturalized" though. Born v. naturalized was not the dividing line.

Not quite. The 14A says born or naturalized in the US.

I'm running out the door. I'll respond more later.

# posted by

Mark Field : 2:36 PM

The opinion turned on "residence":

Held: Congress has the power to impose the condition subsequent of residence in this country on appellee, who does not come within the Fourteenth Amendment's definition of citizens as those "born or naturalized in the United States," and its imposition is not unreasonable, arbitrary, or unlawful. Afroyim v. Rusk, supra, and Schneider v. Rusk, supra, distinguished. Pp. 401 U. S. 820-836.

The "that" in what you quoted referenced the "in the U.S." The 14A says "all persons born or naturalized in the United States" etc are citizens of the U.S. As you note. I don't see though how the opinion says condition subsequent can be applied only to one type of citizenship.

But, I more interested in the later opinions and CRS report anyway.

# posted by

Joe : 2:57 PM

As I read the language you quote, the Court is saying that if Bellei did meet the citizenship definition of the 14A, Congress could NOT impose a residency requirement.

But anyway...

As for Marguet-Pillado, I can't see how to make much of the language you quoted. Yes, it says that neither party contested the legal definition of "natural born". But there was no analysis, no mention of Rogers or Wong Kim Ark or other cases, so I don't think we can call it a holding (and if we did, the 9th Cir. can't overrule the SCOTUS). So it's definitely language in Cruz's favor, but I wouldn't call it enough to overcome the otherwise clear language of those cases.

As for Breyer's opinion, I'd say the following:

1. It's a dissent.

2. He agrees that when citizenship is conferred on the foreign-born children of US citizens, that falls under jus sanguinis rather than jus soli. It seems to me that the phrase "natural born" means jus soli, and I think that's what the 14A Constitutionalized (per Wong Kim Ark).

3. Breyer also agrees that Congress need not, under the 14A, extend citizenship to the foreign born. This strikes me as pretty strong evidence against any argument that they are "natural born".

4. Since the 14A Constitutionalized the phrase "natural born" (Wong Kim Ark), it's unclear whether Congress can add to that. The power granted to Congress, after all, it the power to establish a uniform rule of naturalization.

# posted by

Mark Field : 5:30 PM

BREAKING NEWS from Lawcom: The FDA is thinking of defining "natural."

# posted by

Shag from Brookline : 7:16 PM

Breyer was a dissent but the at birth v. after birth rule for "naturalization" was followed by a decision of the Court in 2001 saying the same thing. The ruling said that the statute in question -- for someone basically like Cruz -- could be said to set up an "equivalence" between birth abroad and on U.S. soil.

So, if citizenship at birth is not "naturalization" and the statute makes people born abroad to a citizen parent "equivalent" to those born on U.S. soil, what is it? It sounds like natural born citizenship. And, the CRS Report uses such things along with other things to state that is the general understanding at this time. Perhaps, that's why it was stated as common sense in the appellate ruling cited.

And, that was the understanding in 1790 -- those abroad could be natural born. But, until the SC directly decides this issue today, clearly people still will be in doubt.

# posted by

Joe : 7:54 PM

Cases like Schneider also state that naturalization is equivalent to "natural born", with the one exception of eligibility to become President. Still, the phrasing could be clarified.

For the record: if the issue came before this Court today, I have no doubt they'd rule in Cruz's favor. It's a purely partisan Court at this point.

# posted by

Mark Field : 8:33 PM

"The 14A does not directly address presidential qualifications, but after closer reading and some additional research, I noted that it does limit the types of citizenship to those born ("natural born citizen") and those naturalized into it, and appears to grant Congress the power to define both of them.

Do you disagree?"

I don't think that dog hunts. The text of the 14th Amendment expressly states there are two kinds of citizens, to read the enforcement clause as a grant to Congress to, in the name of enforcing the 14th, define the terms in ways that might conflate (or erase) this expressly stated distinction is a bizarre reading.

I think you're casting about for some rationale to keep supporting your preferred candidate (seems much like how you see 'progressives' casting about Constitutional theories until they find one that works for their political goals).

# posted by

Mista Whiskas : 8:39 PM

"It's a purely partisan Court at this point."

eh. I think Breyer et. al. would probably accept the current view of Congress et. al. that "natural born" includes those born abroad like Cruz. The liberals are pragmatic on such questions, not "purely partisan." I really don't care on this question the motivation of the fifth vote though fwiw don't think it would be "purely" partisan if they rightly decide the question in his favor.

Honestly, you come off as thinking he isn't one, though I realize you are merely discussing doctrine here.

# posted by

Joe : 9:01 PM

I'm discussing case authority. I consider the Rogers line of cases pretty definitive, and I'm a strong precedent guy. I also think that arguments that Congress has power to define "natural born" are pretty weak, whether based on the 1790 statute or the enforcement clause of the 14A.

On policy grounds, though, I have no problem with the idea that Cruz and others like him are eligible to be President. But I wouldn't overrule long-standing precedent to achieve that.

# posted by

Mark Field : 9:39 PM

Assuming the issue becomes moot for Cruz because of Glenn Beck-itis, can we speculate on a proposed Article V amendment to define "natural born Citizen" regardless of the actual foreign country of birth of a child of a US citizen? Or might the current nationalism/xenophobia exclude certain foreign countries? Think of the Manchurian Candidate.

# posted by

Shag from Brookline : 9:56 PM

Surely politics in the Court is no secret. Long before TV Finley Peter Dunne's Mr. Dooley noted that the Court "follies the illiction returns." That was long before Bush v. Gore (2000) when the Court altered the "illiction" returns. The Justices are well aware of potential changes in the structure of the Court with the upcoming 2016 presidential election. There are several cases pending before the Court that involve political issues being discussed by candidates that should be decided in time for that election. Lady Justice is blindfolded but not the Court's Justices.

Some years back, after I became aware of the great comedy/humor exported to America from Jolly olde England post WW II, when England was no longer a world power, I thought that perhaps this was a result of England's loss of power. Decades later, American comedy/humor has come into its own as political dysfunction has settled in. Perhaps some political scientists with a sense of humor [oxymoronic?] might address this. I recall an exchange between comedians (I don't remember who): "Does it hurt?" "Only when I laugh." But I can't help laughing. The current joke is playing out in full view of American - and the world.

I read today that Trump's best weapon is - drumroll - no, not Sarah Palin - Ted Cruz! Is this a Hobbesian choice? Or that Republican halitosis is better than no Republican breath at all?

# posted by

Shag from Brookline : 7:38 AM

This gets back, I think, to the whole 30 out of the 34 states needed having Republican legislatures. Any amendment, to have a chance, has to be something Republicans want. Democrats, if they want an amendment, have to find one where they have common cause with Republicans.

Like it or not, finding the natural born citizen clause offensive is mostly a Democratic thing. There's a faction within the GOP that are annoyed about Arnold and Granholm having no Presidential prospects, but it's a *small* faction. More Republicans are relieved at that than offended.

But, should we get a Convention, it might well produce a bunch of housekeeping amendments, just to tidy some things up, and clarifying citizenship rules would probably be among them. Probably an amendment constitutionalizing the natural born status of the children of citizens wherever born, and the non-citizen status of children born here to folks who weren't at least legally resident here.

# posted by

Brett : 7:45 AM

I don't consider that the "natural born Citizen" clause was offensive in the timeframe of 1787. But it is dumb in this day and age. Brett fails to provide a majoritarian view with his bad meth - excuse me - math. Many disparate views would surface at a convention or other Article V process to better define this clause. Loopholes, loopholes. What ifs. Brett's concept of "housekeeping" could turn the Constitution into a code. How might dual - or triple - sovereignty be addressed?

As to Arnold, that small faction Brett refers to was significant as the Republicans were so desperate for a viable candidate at the time. But after Arnold's "naughty, naughty" was disclosed, that faction shrunk and put him back into show biz.

As to Brett's " ... the non-citizen status of children born here to folks who weren't at least legally resident here." this would challenge a major aspect of the 14th A and America as a haven of sorts in a world of turmoil. In addition, there might be significant evidentiary issues required to be addressed many years later. Some might suggest such an amendment might pass the buck to Congress. But that would clearly make it all the more political, keeping in mind polls about Congress.

To repeat, I'm not offended with the Framers on this clause. But I am offended that the 1787 Constitution and the bill of rights protected slavery.

And keep in mind that a second constitutional convention would most likely NOT be in secret like the first. Tidy housekeeping is so quaint, especially coming from a self-procalimed anarcho libertarian. There isn't a rug - shag or otherwise - big enough to hide the clutter.

# posted by

Shag from Brookline : 8:29 AM

"But I wouldn't overrule long-standing precedent to achieve that."

To be blunt, you don't think he's qualified == you think the arguments weak and the doctrine strong. Thus, they were wrong in 1790, the current statute (official interpretation that a majority of the Supreme Court seems to accept -- it isn't "naturalization")* granting natural born citizen to those born abroad is unconstitutional and if two citizen members of the military (a law professor on Lawrence O'Donnell differentiated here, but why? if you can make an exception there, civilian citizens can count too) had a child in Canada, he or she couldn't be President. I disagree. So be it.

"finding the natural born citizen clause offensive is mostly a Democratic thing"

Right. That's why conservative Orin Hatch, with Republican support, proposed an amendment to the Constitution to overrule it. If TED CRUZ can't be President, I think more Republicans would come out.

Simply put, neither Democrats or Republicans think much about this issue -- and this is part of why I think the doctrine line is a bit weak since the courts rarely are forced to directly face this issue [Bellei didn't turn on this and the dissent argued constitutionally he was naturalized "in" the U.S.] -- but if you asked an average person of either party, they'd think it is silly if Ted Cruz couldn't be President. Like FDR breaking precedent led to an amendment for a two term President, Cruz not being qualified would be the sort of thing to push things in this direction.

And, this is the sort of thing that would get bipartisan support too. Not the Texas plan, taking power from citizens to vote (for senators) or making it harder to prosecute crimes. Taking away or denying citizenship of innocent children is something mostly a subset of Republicans are worried about.

---

* "citizens of the United States at birth ...

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person"

At birth. A natural born citizen. The average person, both Democratic and Republican, thinks that. So, we are left with technical doctrinal arguments that clash with common sense and as Sandy Levinson argues, not totally compelled. Five justices probably won't buy that, including Kennedy, who goes along with current understanding unless it touches one of his pressure points like federalism.

# posted by

Joe : 8:59 AM

"bipartisan support" would likely be required to get those final votes and for most things at least even the necessary support in a few Republican states, where some are conservative as to change here. Even in Texas, the Texas legislature is not really gung ho to use all their effort to push the Texas Plan, released on take out the trash Friday.

# posted by

Joe : 9:03 AM

BD: Do you disagree?"

Mr. W: I don't think that dog hunts. The text of the 14th Amendment expressly states there are two kinds of citizens, to read the enforcement clause as a grant to Congress to, in the name of enforcing the 14th, define the terms in ways that might conflate (or erase) this expressly stated distinction is a bizarre reading.

You lost me.

My proposition was that, if the British law limiting citizenship to the foreign born children of male citizens, but not female citizens, with foreign mates was indeed the definition of "natural born citizen" in 1787, then the 14A EPC has amended that definition to include a citizen parent of either gender and granted Congress the power to define birth citizenship within those limits.

This proposition does not erase the distinctions between birth and naturalized citizenship.

# posted by

Bart DePalma : 9:20 AM

"Right. That's why conservative Orin Hatch, with Republican support, proposed an amendment to the Constitution to overrule it."

Hence "mostly". Hatch's amendment was so popular with other Republicans that it was refered to committee, where it died without a vote.

"but if you asked an average person of either party, they'd think it is silly if Ted Cruz couldn't be President."

Yeah, probably. Thinking something silly is distinct from taking offense at it.

""bipartisan support" would likely be required to get those final votes"

There's no erasing the fact that Republicans only need to "turn" a relatively small number of Democratic legislators in a few states with one legislative chamber already Republican, in order to assemble the necessary 34 states. While Democrats need to "turn" an enormously larger number of Republican legislators to assemble 34 states.

Yes, matters with bipartisan support would more easily jump even that small threshold for Republicans. But you're starting with Republican support, and adding a few Democrats, not the other way around, if you want to amend the Constitution right now.

And a lot of measures the institutional Democratic party purely hates, like border enforcement, actually do have bipartisan support among the voters.

# posted by

Brett : 9:33 AM

This comment has been removed by the author.

# posted by

Joe : 10:05 AM

Hatch's amendment was so popular with other Republicans that it was refereed to committee, where it died without a vote.

That's a lot more than a lot of these proposals got. IOW, there is some support and a Republican stalwart in fact proposed an amendment for which there actually is some general support. Not enough now to be enough to change the Constitution, but if there was a real chance it among others would be passed, it had more of a chance of passing than various other things listed.

Thinking something silly is distinct from taking offense at it.

That statement was part of an extended discussion. They already think it "silly." Some, from both parties, think it is worse -- that is wrong. And, Cruz would show in real world terms (not some hypo like Arnold) what happens and help push them in a certain direction.

no erasing the fact that Republicans only need to "turn" a relatively small number of Democratic legislators in a few states with one legislative chamber already Republican

There is "no erasing," you skip over the hard parts maybe, you don't have consistent "Republican" support on a bunch of these things. As to border security, seems to be a lot of people deported, money spent against drugs etc. for something Democrats, from the President down, "purely" hates. Hint: deporting innocent children is not necessary to support border security.

Also, even the Republican legislature states include some with Democratic governors or senators, underlining the depth of support. To amend the Constitution, not simply pass policy, support has to be deep. Only a subset of Republican ideas would do that especially those that could have bipartisan support, such as something to ensure Ted Cruz to be President. Well, no one likes him; someone like him.

# posted by

Joe : 10:07 AM

" To amend the Constitution, not simply pass policy, support has to be deep."

Tell you what, let's hold the convention, and see what happens.

My stated opinion is that calls for a convention that specify the amendments to be addressed are pointless. The Convention can't be limited, it's very purpose is proposing amendments. That's it's job. Let it do it. I have my opinions about what would be good amendments, but unless I ended up a member, what would they matter?

Worse, if you issue calls for a limited convention, different states specify different limits, using different language, handing Congress a gold plated excuse not to add the calls together to arrive at the necessary number.

If you're serious about a convention, you call for a convention, period. Then we get down to debating what sorts of amendments it ought to originate.

All I'm certain off is that Republicans are far more likely to like the product of such a convention than Democrats are, given the present distribution of legislative seats. And I don't see that changing in November.

# posted by

Brett : 10:18 AM

let's hold the convention, and see what happens

You and Sandy Levinson are serious about a convention. The country as a whole is not. They are even less serious about an open-ended convention.

certain off is that Republicans are far more likely to like the product of such a convention

whatever that means .. what is required though is a supermajority to propose and ratify; even if there is a convention, which there is no serious push for, that will require selecting certain things. Balanced budget? End of natural born. Some things tossed in Republicans will be okay with to get some Democrats to go along ala the original Constitution compromises? Maybe.

Various other things you want? Much less likely. This includes a few things those final votes will fight strongly against and Republicans as a whole just aren't that passionate about. Like taking citizenship away from innocent children.

# posted by

Joe : 10:30 AM

they were wrong in 1790

I think they were probably wrong in 1790, but more to the point I think the 1790 statute is irrelevant. The "natural born" language was removed in 1795 and hasn't appeared in a statute since. Even if we assume that Congress has the power to declare jus sanguinis "natural born", it hasn't done so.

The wording declaring some persons citizens "at birth" doesn't strike me as the same as "natural born". As we see from Bellei and from the statute, some of those "citizens at birth" are subject to conditions subsequent which might cause them to lose their status. I don't believe that's possible for those born in the US (14A and Afroyim v Rusk).

If Congress does have the power to declare someone "natural born", it should at least pass a statute saying so. If it has that power, then we don't need an amendment.

# posted by

Mark Field : 10:43 AM

In that sense, we "take citizenship away from" virtually every innocent child in the world. Big freaking deal. I like being a US citizen, but being a US citizen isn't some kind of moral entitlement for every baby in the world. And it's not something we should just hand out to anybody whose mother sneaks across the border while pregnant.

# posted by

Brett : 10:55 AM

For everyone: Einar Elhauge has an article in Salon about the issue at http://www.salon.com/2016/01/20/ted_cruz_is_not_eligible_to_run_for_president_a_harvard_law_professor_close_reads_the_constitution/

He concludes that Cruz is not eligible.

In that sense, we "take citizenship away from" virtually every innocent child in the world.

I don't understand what you mean by this.

In any case, the 14A applies to anyone born here. That's an important right IMO, but it's a Constitutional right regardless.

# posted by

Mark Field : 11:04 AM

Query: Was the 1790 statute challenged in the court,s state or federal, as unconstitutional? The fact that a federal statute is not so challenged does not finally address its constitutionality. Is there a constitutional canon on laches? Reliance on the 1790 statute seems to be in the nature of an originalist argument.

# posted by

Shag from Brookline : 11:05 AM

The fact it was removed -- why is simply not clear -- doesn't make the First Congress' (with various members who wrote/ratified the thing involved, down to George Washington) interpretation of things "irrelevant." It "did" so at a key moment. It obviously could have been wrong (it's treatment of blacks as "persons" left a lot to be desired).

[In answer to Shag, a law professor on Lawrence O'Donnell last night suggested the 1790 rule was changed since it was determined to be wrongly written. But, looking over articles while writing these things, others disagree there was a clear reason.]

Tuan Anh Nguyen v. INS (2001) "refers to naturalization, which in turn is defined as "conferring of nationality of a state upon a person after birth." A majority of the Supreme Court without suggesting it was constitutionally problematic determined granting Cruz citizenship at birth not an act of "naturalization."

Afroyim v. Rusk involved someone "born in Poland in 1893, immigrated to this country in 1912 and became a naturalized American citizen in 1926." The opinion "does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship."

Again, Bellei turned on residence. If we want to appeal back to late 19th Century law, natural born citizens until Afroyim v. Rusk along with naturalized ones were deemed to be liable to lose citizenship (even Brennan at first went along with that). There were "conditions" such as for dual citizens as children or the duty not to desert during wartime (Perez v. Brownell). The rule was overturned 5-4 so is seems open to reason debate. Justice Harlan's dissent was fwiw pretty sensible.

Congress passed a statute saying someone was "natural born" -- that is as noted by the CRS Report the general current understanding of what the language I quoted means.

# posted by

Joe : 11:13 AM

This comment has been removed by the author.

# posted by

Joe : 11:15 AM

The op-ed article Mark Field cited is the law professor on t.v. that I referenced.

"born in the US (14A and Afroyim v Rusk)" -- the dissent in Bellei at least didn't think so, since they relied on the principles to apply to those like Bellei not born "in the U.S."

As to Brett, no, we have a rule where those born in the U.S. -- it's in the 14A -- become citizens. That is the "sense," not children world-wide. Your disagreement with constitutional provisions like Sandy Levinson's is duly noted.

Anyway, appreciate the extended discussion.

# posted by

Joe : 11:24 AM

My point that the 1790 statute isn't relevant is limited to the fact that no subsequent statute has used the phrase "natural born". It may be that Congress has the power to declare someone "natural born" (I doubt it), but the fact is that it hasn't done so.

As for Afroyim, he was naturalized in the US and therefore came within the 14A. That was not true of Bellei and the Bellei majority made that specific distinction.

FWIW, spent some time this morning trying to find the language Elhauge quoted about the 1790 statute being erroneous, but was unable to find it.

# posted by

Mark Field : 1:03 PM

Bart,

In your casting about to find a rationale to continue your short term political goals you've actually offered several hopeful arguments. One was the pointing to the 1790 Naturalization Act as perhaps reflective of Founding understandings. Another was this argument I responded to, that the citizenship language combined with the enforcement provision of the 14th allowed Congress to redefine 'natural born citizen.' I've explained the problem with that bizarre reading. You've also offered the Naturalization Power in Art. I, as well as this one, which you've redoubled back to, about the EPC invalidating the limit by Parliament of natural born citizenship along the father's line.

But I don't see that dog as hunting either-at least not for you. You recently said this:

"Original meaning interpretation would freeze the meaning of a word or term as it was understood when the constitution, law, contract or will was put into effect."

Do you really want to argue that the EPC was understood, at the time, to invalidate laws which discriminated on sex? Heck even the early Progressives assumed it did not and thought the 19th Amendment necessary in the area of voting! That the EPC applied to sex distinction laws was, as Scalia has noted, an idea of those nasty, usurping Progressives. You're going to have some trouble relying on that to try to wriggle your preferred Canadian candidate into the Presidency.

# posted by

Mista Whiskas : 1:18 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 9:49 AM

Mr. W:

I am applying the original meaning of the text and nothing else.

I conceded your argument that the term "natural born citizen" is best defined by the British law at the time and that definition would not include Cruz.

Because Congress enacted it after the Constitution was ratified, the Naturalization Act of 1790 is not a good source of original meaning unless there is some proof that the Act reflected the meaning of "natural born citizen" in America at the time of ratification. The fact that multiple delegates to constitutional convention also helped enact the Naturalization Act of 1790 is pretty weak proof.

However, any amendment to the Constitution (or any other sort of law or contract) by definition reverses any earlier conflicting provisions.

Equal protection of the law is a basic right which has been found guaranteed in the 5A DPC/14A EPC and should be included in the 9A. Equal means equal and its definition is not truncated by the disinclination of earlier generations of American to extend equal protection of the law to women or minorities. Equal protection of the law obviously forbids extending citizenship to the foreign born children of male citizens, but not female citizens, with foreign mates.

# posted by

Bart DePalma : 9:51 AM

SPAM I AM!'s concession to Mr. W included this:

"However, any amendment to the Constitution (or any other sort of law or contract) by definition reverses any earlier conflicting provisions. "

He seems to equate in his parenthetical with an amendment to the Constitution. He even suggests that if Cruz were elected President a subsequent curing amendment (or parenthetical action) would work retroactively. How does that work under our system?

But I digress, as I wish to report that yesterday, for the first time since XMAS I attended the (mostly) liberal, some progressive lunch (having been sidelined by a nagging col and cough alleviated with cough syrup w/codeine*). With the help of the usual - and unusual - suspects at this Blog and others, I was well prepared to discuss "natural born Citizen." Alas, the subject was not brought up directly. A reference was made to a Rubio political attack-ad aimed at Ted Cruz (here in MA we get exposed to ads aimed at NH primary voters) encasing his pate in a maple leaf. I did not take this as an appropriate segue into the meaning of "natural born Citizen." Perhaps the Rubio attack-ad would have been more effective with a musical rendition of "Maple Leaf Rag" and photoshopping Cruz holding a Cuba Libra and depicting the Castro Bros. whom Cruz's dad had supported against the Batista regime. Rubio's ad man could have gotten the hint from Trump's playing "Born In The USA!" at his rallies. But of course Rubio's parents fled Cuba under the Batista regime (which might suggest to some cynics that his parents were pro-Castro).

Back to SPAM I AM! with his EPC defense:

"Equal protection of the law obviously forbids extending citizenship to the foreign born children of male citizens, but not female citizens, with foreign mates."

Here's the full text of Section 1 of the 14th A:

"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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The second sentence begins "No State shall ... "closing with the equal protection provision. How are states involved with construing Article II's "natural born Citizen" requirement as the issue as to Cruz unfolds?

While the much earlier 5th A limiting the federal government does spell out a due process clause, it makes no specific reference to "equal protection."

Of course we have to tie-in the later 13th, 14th and 15th As, as well as subsequent As, including especially women's suffrage.

So SPAM I AM! does not have a tidy argument, once again straining at gnats.

*Because of this, I forsook my traditional lunch ending glass of fine port.

# posted by

Shag from Brookline : 11:35 AM

Despite many of them existing virtually everywhere and in many facets of the law since 1868, the Supreme Court did not strike down a law based on sex distinction as a violation of the EPC until 1971 (a very liberal Court at the time, pre-Rehnquist even!).

"In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination" Justice Scalia

Heck, even Jack Balkin concedes that the drafters of the 14th wouldn't have expected it to apply to married women because of coverture which was understood to be left undisturbed by the measure:

"The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands."

# posted by

Mista Whiskas : 11:39 AM

Shaq has made several excellent points in this discussion, and this is another one, in noting Bart's reliance on the 14th's EPC, directed at states, to overturn the federal understanding of citizenship. It wasn't until 1954's the Warren Court decision of Bolling v. Sharpe that equal protection was applied to the federal government via 'reverse incorporation' of EP via the 5th Amendment's DPC. This decision has generally been seen as weak by conservative originalists, so it's going to be funny to see Bart run to it (and Reed v. Reed) in his quest to salvage his mission of installing a Canadian as our President.

# posted by

Mista Whiskas : 11:47 AM

Here's an interesting thing about Bart, and many originalists, though patterns.

When it came to the term 'natural born citizen' Bart thought we should reject the dictionary definition of it at the time it passed (said definition standing in the way of his mission to install a Canadian as President, of course), and instead look at how the term was understood under British statutory language because that's how the drafters of the language would have thought of it. (That of course didn't work out for him either once I looked up the actual statutory language, but, the mission to install the Canadian must continue, so another theory has to be tried).

NOW when talking about what 'equal protection of the law' entails, Bart says we should reject how the drafters certainly understood the term, but we should instead rely on the dictionary meaning of 'equal.'

Bart travels from the perspective of Bork to Balkin when it suits.

Originalists, quite the cherry pickers, eh*?

*Eh added for the sake of Bart's Canadian candidate

# posted by

Mista Whiskas : 11:52 AM

Mr. W's observation of SPAM I AM!:

"[SPAM I AM!] travels from the perspective of Bork to Balkin when it suits."

reminds me of Tony Bennett's "Rags to Riches." But Jack may not appreciate Mr. W's reference.

And I can't resist: "Bolling for Conservatives" or vice versa.

(Damn, Sherlock, when does the codeine wear off?)

# posted by

Shag from Brookline : 12:03 PM

The second sentence begins "No State shall ... "closing with the equal protection provision. How are states involved with construing Article II's "natural born Citizen" requirement as the issue as to Cruz unfolds? While the much earlier 5th A limiting the federal government does spell out a due process clause, it makes no specific reference to "equal protection."

Agreed.

I included the 14A because its combines citizenship and equal protection.

I included the 5A only because the Supreme Court is still giving credence to substantive due process and would likely stop at the 5A in its analysis of the effect of equal protection on the definition of the parentage necessary to be a "natural born citizen."

Because substantive due process is a legal fiction, I also noted that the 9A protection of unenumerated fundamental rights would protect equal protection under the law, which was widely held at the time of ratification to be a natural right.

# posted by

Bart DePalma : 12:18 PM

Mr. W:

Here is how original meaning (not originalism) works.

You look at the meaning of the word at the time the law was enacted or the agreement entered.

When you are examining a common word like "equal," use of a contemporaneous common dictionary works just fine.

When you are examining a legal term of art like "natural born citizen," then you go to the contemporaneous law before any common dictionary, which often misdefine legal terms. Your common dictionary misdefinition of "natural born citizen" using long reversed common law is a case in point.

You only go beyond the text of the document to consider the course of conduct of the parties when the language is vague or contradictory. Equal has always meant equal and past governments' violations of equal protection are meaningless in determining that definition.

# posted by

Bart DePalma : 12:30 PM

Bart,

First of all, the definition of 'equal' is one that people have differed with for a long time. People of that time wouldn't have understood 'equal' to mean treating women and men equally because they wouldn't have seen the two as similarly situated at all.

But more importantly, it's not just 'equal,' it's an entire phrase: 'equal protection of the laws'. That was a decidedly legal term, not one of common, every day usage. The people who passed it were elected by all male voters (while five states allowed blacks the vote in 1868 none allowed women), virtually noone at the time would have understood the phrase 'equal protection of the law' to require changes to sex distinctions in the law, and you're on record as saying the meaning of the law is frozen to how it was understood at the time. The idea that EPC would mean equal treatment of women was one that came from the work of progressive jurists many decades later, applying modern notions of what 'equal protection of the law' entails.

# posted by

Mista Whiskas : 1:18 PM

"equal protection under the law, which was widely held at the time of ratification to be a natural right."

Citation for that claim?

# posted by

Mista Whiskas : 1:20 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 1:47 PM

Mr. W:

I do not have time to give you a bibliography on the small "r" republican theory on equality under the law.

Google the "law of equal liberty" or the "law of equal freedom."

You can start with the works of John Locke and Herbert Spencer.

Then you can start reviewing discussions of equality by the various Founders and their contemporaries.

This republican theory upon which the Constitution was written did not distinguish between the people based on race or gender.

# posted by

Bart DePalma : 1:48 PM

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

# posted by

Joe : 1:50 PM

I'll be taking some time away from all this constitutional "CRUZ-I-FRACKING" to read the current symposium posts on inequality and the economics of the Constitution. That doesn't mean I'll ignore this thread, however.

Keep in mind my earlier reference to "It only hurts when I laugh." And I continue to not being able to stop laughing. (Maybe that lingering codeine effect may compensate while going cold - not wild - turkey).

# posted by

Shag from Brookline : 2:16 PM

Bart,

The law of equal liberty is not the same thing as 'equal protection of the law.' The latter's origin is well described here:

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5040&context=fss_papers

# posted by

Mista Whiskas : 3:40 PM

Mr. W:

We were discussing the unenumerated right guaranteed by the 9th Amendment against the national government, not the sausage making in enacting the 14A guarantee of equal protection against the states.

# posted by

Bart DePalma : 4:45 PM

I just got back from my morning non-Constitution "constitutional" that I delayed in the course of my "recovery" to this afternoon as I needed a few items from Whole Foods where so much is "natural," before the snow storm makes its way to MA that will test DC and New York values. A quickie review on the 'Net disclosed Ted Cruz's personalized libertarian health plan. Will libertarians lemming-like follow? Alas, Cruz's decision affects not only himself but also his wife and two daughters. Ayn Rand might be proud of such a libertarian move. Too bad he gave up his Canadian citizenship. [Note: Will "Corpus" Christie stay in NH?]

Now back to the symposium.

# posted by

Shag from Brookline : 4:49 PM

Just in case Mr. W is LOL-ing too hard to respond, perhaps SPAM I AM! can enumerate:

" ... the unenumerated right guaranteed by the 9th Amendment against the national government, not the sausage making in enacting the 14A guarantee of equal protection against the states."

Or is SPAM I AM! making another of his HUMPTY-DUMPTY moves?

# posted by

Shag from Brookline : 5:37 PM

BREAKING NEWS! "Corpulent" Christie is going back to New Jersey for the storm, perhaps anticipating another "Sandy" moment politically. But he does not want to get the "lead" out, vetoing a bipartisan bill, despite the Republican Michigus Snyde in Flint. Perhaps he doesn't want to get rid of lead because he thinks of himself as a leader.

# posted by

Shag from Brookline : 8:08 PM

The snow hasn't reach here in the Boston area as yet. Up until a couple of years ago I enjoyed snow shoveling. My body tells me otherwise, so I rely on others. I have read Fishkin and Forback's symposium post, a great read for the progressive me; and I also read Purdy's post commenting on the F&F manuscript. Later today I'll start on Michelman's post. These are lengthy posts and I have to take my time reading them on my desktop requiring the magnifying feature to ease my eyesight issues. At some point, it would be nice to offer a comment thread on these posts, not now, but later on.

Meantime, I've got time on my hands, so a little political potpourri while the codeine wears away from my aging bones.

1. Trump has long sued people, corporations, etc, at the drop of a hat. Some years back Trump and Roy Cohn took a shine to each other on legal matters. After Cohn's demise, Trump has continued with aggressive lawyers. (Aside: Perhaps Ted Cruz could serve Trump in the Roy Cohn tradition.) Consider a President Trump and how he might, as President, challenge attacks upon him This brings to mind the Alien and Sedition Acts late in Pres. John Adams' administration in attempts to thwart Thomas Jeffereson in the 1800 presidential campaign. Might a President Trump seek to push through a Republican controlled Congress similar acts?

2. Here's a bumper sticker suggestion to address the "natural born Citizen" requirement of Article II:

"CRUZ: PRESIDENTIAL CANADATE 2016!"

3. With 100s of ConLaw scholars yet to be heard from on the "natural born Citizen" requirement, the issue seems in the political doldrums, perhaps reflective of the absence of discussion (though I was well prepared) at the Thursday (mostly) liberal lunch. Even over at the Originalism Blog Mike (I'm not Rappaport) Ramsey has not been posting on this issue for several days, perhaps because originalist views have taken a hit - or two. It's been difficult for Mike following his recent article and challenges to his old originalism views. I would classify Mike as a "three-handed originalist" (clue: Truman on economic advisors: "On the one hand .... " "On the other hand .... "

4. Did John McCain get even with Trump regarding the latter's denigrating McCain's POW hero status via Sarah Palin's endorsement of Trump, hoping that she does to Trump what she did to McCain? What's saucy for the goose ....

# posted by

Shag from Brookline : 11:46 AM

Presidential CANADATE Ted Cruz, it is reported by his campaign in BREAKING NEWS! from Toronto, actually did NOT go libertarian bare on health insurance after all. Maybe Cruz needs a lesson in family values.

# posted by

Shag from Brookline : 2:40 PM

http://talkingpointsmemo.com/livewire/ted-cruz-health-insurance-questions

It's all a big misunderstanding. This citizenship debate between me and Mark Field has flowed to another blog (Lawyers, Guns & Money) but it all can be academic (well, this blog is academic) if Ted Cruz just loses.

Bloomberg, btw, covers the Ted Cruz story, and there is now talk he might run. This seems to the election where various older citizens decide to run (toss in Bloomberg, four candidates would be over 65) along with the youngsters (Cruz/Rubio) etc.

Let me note Kimberly Robinson, who also is a good Twitter follower for those into that sort of thing, works for Bloomberg and provides good legal coverage.

https://twitter.com/KimberlyRobinsn

There is snow here, but unlike some places, snow doesn't throw us.

# posted by

Joe : 3:56 PM

Trump claims he could shoot someone and not lose voters. This raises the question: Even suicide?

This question reminded me of a PBS Special some years back on Sid Caeser's writeres revisiting the glory days of earl, live TV. The writers went back and forth reminiscing about how they worked and argues together and Sid's reactions to their schticks. Larry Gelbart mentioned that Mel Brooks had once written a song for a skit that included the word suicide. Mel Brooks went on to do some big things in movies, including his spoof of Hitler and Nazis with "The Producers." In addition he came up with "High Anxiety" and "Blazing Saddles." But Brooks also had a perhaps less successful movie "Life Stinks" (1991) that he directed and starred in, prescient possibly of the likes of Donald Trump about: "A filthy rich businessman bets a corporate rival that he can live on the ... " It has to do with a potentially large real estate development in LA. Is it too late for a timely Broadway production of "The Deal Maker"? Recall the impact "The Book of Mormon" on Mit's campaign. Mel, where are you when America, even the Republicans, need you?

# posted by

Shag from Brookline : 3:57 PM

He might get more votes from some groups, but being dead might be a problem in the Electoral College. See, Horace Greeley, 1872.

# posted by

Joe : 4:43 PM

I'm now up to date on the symposium posts. Jack Balkin's post is a must read on republican form of government, pointing out that the federal government's "guarantee" of such government for the states (explicitly provided for in the Constitution) also means such form of government for the federal government (even though not explicitly stated in the Constitution). Jack also referenced anti-corruption that Zephyr Teachout can be expected to address as a participant of the symposium.

# posted by

Shag from Brookline : 10:15 PM

Already two new symposium posts. But they'll have to await the Sunday political shows. Regarding my comment on Jack Balkin's post, I should have mentioned that those not interested in the symposium might be interested in Jack's take on representative form of government.

Speaking of politics, since I can't stay awake for SNL, this morning via the Internet I caught it's opening segment on Trump and his trump-ette's endorsement. Trump from the beginning of his campaign has engaged in "political suicide," conventionally speaking, but gets new life each time. Will Sarah Palin put a little more vamp in this vampire? [Note: Will Trump succeed in keeping Megyn Kelly out of an upcoming debate? Take a peek at the NYTimes "Donald Trump and the 'Rivers of Blood,'" by Sarfraz Manzoor.]

# posted by

Shag from Brookline : 10:13 AM

The meaning of the Guarantee Clause arose recently when we were debating the meaning of the Reconstruction in the comments and I provided a summary of history. The clause played a significant factor in the legislation in that era and the arguments on the proper approach to "reconstruct" the old state of affairs.

As Mark Field noted, the question under Luther v. Borden was seen a political question, one Congress would determine. Some (on the left and right) argue it should also be a judicial question.

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1696&context=faculty_scholarship

The true meaning of guaranteeing a republican system of government is a deep matter of dispute and Prof. Teachout, e.g., has written about how campaign finance regulations are fundamental there, including by appealing to history. Contra to some, history is not ignored by so-called "living" constitutionalists. Prof. Balkin has used history to defend a broader use of commerce ("Commerce" article) and co-wrote an article with his long time friend/collaborator, Sandy Levinson, on a broad understanding of the 13A as well.

The concurring opinion in a state abortion opinion also appealed to history, there the troubles in Kansas and Abraham Lincoln etc., to argue what the state constitution said about the matter:

http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2016/20160122/114153.pdf

# posted by

Joe : 12:01 PM

"just in case Mr. W is LOL-ing too hard to respond,"

It is pretty laugh-worthy. I'm not sure what makes more so, the retreat into the murky realms of the 9th Amendment, or the fact that it's plain to anyone following the discussion that that was a sharp left (or right?) turn from where he was going (perhaps seeing it was clearly a dead end)*.

On another note, I've rather enjoyed both the Joe-Mark discussion and Shaq's links.

* I mean, just look at the last few exchanges:

Mista Whiskas said...

"equal protection under the law, which was widely held at the time of ratification to be a natural right."

Citation for that claim?

Bart DePalma said...

Mr. W:

I do not have time to give you a bibliography on the small "r" republican theory on equality under the law.

Google the "law of equal liberty" or the "law of equal freedom."...

Mista Whiskas said...

Bart,

The law of equal liberty is not the same thing as 'equal protection of the law.'...

"Bart DePalma said...

Mr. W:

We were discussing the unenumerated right guaranteed by the 9th Amendment against the national government, not the sausage making in enacting the 14A guarantee of equal protection against the states.

So, when Bart said "equal protection under the law, which was widely held at the time of ratification to be a natural right." He was talking not about the 14th amendment where that phrase is found, but instead in the 9th where it's absent.

Sure!

# posted by

Mista Whiskas : 2:34 PM

Shaq, if we had a liberal majority on the Court with a fraction of the activist boldness of our current conservative one, then we'd probably see something like the use of the Guarantee Clause to justify anti-corruption measures. It sure has a heck of a lot more textual justification than 'equal sovereignty of the states.'

# posted by

Mista Whiskas : 2:36 PM

Before this post heads into the Archives of this Blog, I urge the "usual suspects" to follow the symposium. Today I read the review in the Sunday NYTimes Book Section of "'Dark Money' by Jane Mayer," reviewed by Alan Ehrenhalt. This review shows why the symposium is important. The book is about the Koch Bros. and how their and other wealthy conservatives/libertarians brought us Citizens United and Republican intentional dysfunctional politics being displayed by the current 2016 GOP Clown Car presidential candidates. As companion to that review, read another Sunday review of two books: "'Why the Right Went Wrong [by E. J. Dionne, Jr.] and 'Too Dumb to Fail {by Matt Lewis]" reviewed by Adrian Wooldridge.

# posted by

Shag from Brookline : 8:28 PM

Mr. W: "My proposition was that equal So, when Bart said "equal protection under the law, which was widely held at the time of ratification to be a natural right." He was talking not about the 14th amendment where that phrase is found, but instead in the 9th where it's absent."

Precisely. How can you believe otherwise?

When identifying things assumed at the time of ratification to be fundamental rights, why precisely would we consult congressional debates over the 14A nearly a century later? Most especially since we are seeking a federal equal protection guarantee and not the 14A guarantee against the states?

At the time of ratification, the Lockean concept of equality under the law was considered to be a fundamental right, but the drafters did not enumerate the right in the first eight amendments of the Bill of Rights, therefore it would be by default among the unenumerated rights guaranteed by the 9A.

# posted by

Bart DePalma : 9:03 AM

SPAM I AM! with this:

"At the time of ratification, the Lockean concept of equality under the law was considered to be a fundamental right, but the drafters did not enumerate the right in the first eight amendments of the Bill of Rights, therefore it would be by default among the unenumerated rights guaranteed by the 9A."

well demonstrates that he is a textualist HUMPTY-DUMPTY. [Note: Is mr. W "guilty" of cruel and abusive treatment of SPAM I AM! in plucking hairs from his chinny,chin- chin. This may require an updated photo accompanying SPAM I AM!'s comments.]

# posted by

Shag from Brookline : 9:28 AM

I read the review of the last two books Shag referenced. The review suggested the authors were a bit naive. Regarding tales from the "dark side," Rumsfeld is on the Late Show tonight.

# posted by

Joe : 9:30 AM

I wonder if Stephen Colbert will be naive in his sit-down with Rummy about the document discussed at:

http://www.politico.com/magazine/story/2016/01/iraq-war-wmds-donald-rumsfeld-new-report-213530

in a lengthy article by John Walcott cleverly titled: "What Donald Rumsfeld Knew We Didn't Know About Iraq."

(Perhaps Rummy may cancel out. If so, Colin Powell might be a good substitute.)

# posted by

Shag from Brookline : 9:52 AM

Prof. Levinson being interviewed regarding his new book:

http://www.c-span.org/video/?401572-5/book-discussion-argument-open

# posted by

Joe : 11:07 AM

Post snow storm activities have limited my time to read four additional symposium posts, so I decided to read Mark Graber's post as I am more familiar with his writings. His discussion of the Freedmen's Act during Reconstruction was most interesting. Coincidentally, earlier in the day I had downloaded from WaPo "Five myths about Reconstruction" by sociologist James Loewen and it adds t points made by Graber.

# posted by

Shag from Brookline : 3:36 PM

Bart,

If you were talking about a 9th Amendment unenumerated 'right to equal liberty' why did you say 'equal protection of the law?' Especially smack dab in the middle of a discussion about the 14th Amendment you're likely to confuse quite a few people...

So to clarify, you're current argument is that the natural born citizen clause, despite the fact that it would, according to your previous statements, have been understood at the time to mean what the English statutes at the time defined the term to mean, namely a person born in the U.S. or who was born abroad but with a citizen father, should be read to apply to those born with abroad with a citizen mother as well because the 9th Amendment contains an 'equal liberty of the laws' right within it that requires the rest of the Constitution to be read in accordance to that principle?

I'm curious, do you recognize that that argument is going to be quite a 'tough row to hoe?' Among the many things one might say about it, do you realize that according to your argument, the 13th or 19th Amendment, for example were entirely superfluous.

# posted by

Mista Whiskas : 6:25 PM

Over at the Originalism Blog Mike (I'm not Rappaport) Ramsey has a 1/25/16 post "Further Reader Comments on Natural Born Citizens (Plus Joseph Fishkin") that closes with this:

"Also I think this is a great post on originalism and the eligibility clause from Joseph Fishkin at Balkinization (though naturally I don't agree with it in full)."

Sandy's post here follows on Fishkin's Balkinization post on Ted Cruz. Mike demonstrates his "on the other hand" originalism.

Is it my imagination or are the yet to be heard from ConLaw scholars reluctant to commit on the "natural born Citizen" requirement? Is this perhaps that like Republican Senators they don't like Ted Cruz? When Cruz was 18, his goal was "World Domination." Is the presidency his stepping stone?

# posted by

Shag from Brookline : 8:16 PM

I stayed up beyond geezer time last night to watch the Late Show segment with Donald Rumsfeld. He was there to promote an App he has "developed" of "Churchill Solitaire," a profit seeking venture. To Stephen Colbert's credit, following preliminaries, he dug into the once secret Iraq intelligence memo noted in an earlier comment of mine. Rumsfeld attempted to throw Stephen off as he searched for words describing the memo by suggesting Stephen was embarrassing himself, with Stephen responding, in effect, "No, I don't get embarrassed. I'm a comedian."

The scheduling of Rummy may have been arranged before the article on the memo appeared. I thought Rummy might cancel. I did not then know of his App project that he was there to promote.

It turns out that the profits from the App project will mostly benefit military, veterans groups. Considering the damage Rummy and the Bush/Cheney caused despite the weak intelligence as disclosed in the memo, there seems to be a touch of irony in this . Did Stephen extract a mea culpa? No. But I think David Letterman applauded Stephen.

# posted by

Shag from Brookline : 9:50 AM

Stephen Colbert, I think, did a good job -- he has repeatedly have had serious guests on and used a combination of his niceness, sense of humor and serious questioning to make it worthwhile television. Given the nature of his audience, who booed Ted Cruz when he was on, I wonder if they were put on notice beforehand to be nice.

The fact Rumsfeld came on to promote an app -- if one that is being used to fund military vets (no comment there), a cause Stephen Colbert has supported in the past -- just left me speechless on some level. Anyway, some don't want Colbert to have guys like him or Trump on, to give them legitimacy, but asked serious questions and reached an audience that NPR or Charlie Rose etc. would not get.

It seemed to cut into his next guest's time, some basketball star with his own brand of eyewear, but that is okay. Also, I think Colbert's pre-interview segment was great last night too on Cruz etc. And, the inability of Carlson Palmer to do what QBs have to do -- throw balls to the right team.

# posted by

Joe : 2:14 PM

TPM now has a link to the Rumsfeld interview limited to the discussion on "Unknown knowns." Watching it a second time, it was even better.

# posted by

Shag from Brookline : 2:32 PM

I was not able to watch the Rumsfeld interview as I feared that I might throw something at my tv.

# posted by

Anonymous : 3:54 PM

To get back, somewhat, on topic, here's my verse that hopefully will be mooted in due course:

***

MAPLE LEAF RAGE!
[With apologies to Scott Joplin]

A constitutional requirement
To qualify to be President –
A “natural born Citizen” –
Faces constitutional Zen,
With the “Canadacy” of Ted Cruz,
Trumpeted by The Donald’s bemuse,
Whether his birth in Canada
To a father from Cuba
And a maternal American
Makes a “natural born Citizen.’
Legal scholars with varied views
Frack the Constitution for clues
To address Cruz’s “Canadacy”
For the 2016 Presidency.

***

Where’s the constitutional sage
Who’ll resolve this Maple Leaf rage?

January 26, 2016

# posted by

Shag from Brookline : 7:39 PM

I caught a rerun of yesterday's Charlie Rose show that included a segment with Donald Rumsfeld on his new Churchill Solitaire App. Charlie eventually got to the memo discussed in earlier comments on Iraqi intelligence and did a fair job. Charlie made an effort to point out that WMDs were generally considered to refer to nuclear weapons rather than chemical weapons. But Rummy did his two-step on this. Did Rummy forget Condi's mushroom cloud spiel? Those interested can get to the website by Googling.

# posted by

Shag from Brookline : 1:32 PM

thanks for good content approved :D Pulau Seribu Island

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# posted by

indra : 1:12 AM