thesustainers

The Constitution requires that the President be a “natural born citizen”.  Ted Cruz was born in Canada. That being the case, is he a natural born citizen? Donald Trump says he can bring the case, of Cruz as a national born citizen, to the courts. Can he do so?
As provided by the Constitution, “No person except a natural born citizen shall be eligible to the Office of President”. The reason comes from a John Jay letter to George Washington, the reason being “to provide a strong check to the admission of Foreigners into the administration of our national Government” we must “declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.” The fear was that European princes could gain control of the nation by becoming President. That purpose is clear. What is not so clear, though, is the meaning of “national born citizen”.
One meaning, perhaps the popular meaning, is that “natural born citizen” means born on our soil. A different view, though, is that natural born means born to a citizen, wherever that parent-citizen is, here or abroad, at time of birth.   Our Congress, in its first session in 1790, adopted the latter view.   By the 1790 statute “the children of citizens . . . born beyond the seas . . . shall be considered as natural born citizens.” Today, statutory law is the same; a person born abroad to a citizen-parent is citizen. In terms of the 1790 Act, that person is also a natural born citizen. I subscribe to this view. And Cruz, born in Canada to an American citizen, is a natural born citizen.
But yet –there is a reason to support the view that natural born citizen means born on our soil, and only that. This view comes out of the Fourteenth Amendment. Except for a “natural born citizen” for the President, our 1787 Constitution said nothing about who is a citizen. What if a person born is here, in this country? Is that person a citizen? The Constitution did not say. But we had to know. The practice that developed, from 1787 to the Fourteenth Amendment, was that a person born to a citizen-person was born as citizen. The marker was the citizenship of the parent. But then came the Civil War.
After that war we wished to make African-Americans citizens. And how could we do so? Owing to the Supreme Court’s abysmal decision in the Dred Scott case, African-American parents were not citizens nor could their children be citizens. For African-Americans, then, the citizenship-of-the-parent measure did not work. The Fourteenth Amendment, though, solved the problem. It provided a different measure, by saying that “All persons born . . . in the United States are citizens of the United States.” “All persons” included African-Americans. Today, the “born in the United States” terms of the Fourteenth Amendment are also offered in support of the view that only a person born on our soil is a natural born citizen.
But again I think not. Congress in 1790 had it right when it said that a person born abroad, there to a United States citizen, gains the parent’s qualities as a citizen, and thus was, in the Act’s terms, a “natural born citizen”. Consequently, Cruz is a national born citizen. But I may be wrong. Perhaps you so have to be born on our soil. Who is to say, the courts?
Now we are to the second question, was Donald Trump right as he said he could bring Cruz’s natural-born-citizen status to the courts. The answer, of which I am sure, is not the courts. The courts, as they say and know, are under the “political question” doctrine. By it certain issues are best decided by Congress and/or the President, and courts do not decide the case. For instance, the Constitution gives Congress the power to declare war. When a suit was brought claiming that the Vietnam War was unconstitutional, because Congress had not properly declared war, the Supreme Court dismissed the case. Only Congress can say whether it had declared war.
As to who is a natural born citizen, the Constitution again assigns that matter to Congress.   The Twelve Amendment, enacted in 1804, provides that electoral votes for the President are counted by Congress. Electoral votes from the states are sent to Congress and in the first week of January both houses meet to count them, the winner of a majority being the President. In that count any member of Congress can question the validity of an electoral vote or votes. On due deliberation, the objection is either accepted or rejected. As enough electoral votes are rejected, the Vice President becomes the President until something otherwise is done. (3 USC Sec. 15 on electoral votes). Just so, “national born citizen” is a political question.
We also have a piece of history. In the 2008 campaign the Republican candidate, John McCain, was born outside the country, on a military base in the Canal Zone. He had 173 electoral votes, with none rejected because he was not a natural born citizen. By that process only Congress can say (assuming Cruz is nominated) whether he is a natural born citizen.

Bill Mayton, Simmons Professor Emeritus at Emory Law School. Prior to Emory I flew for the Navy from 1963-69, and then attended Columbia Law School, was an attorney on the Watergate Committee, and entered teaching, where I taught and wrote about the Constitution.

My postings are about the citizen, about “sustainers” as first identified at Athens and then found among us, in early 1600’s at Jamestown and Plymouth Rock, in 1776 and the Declaration of Independence, in the 1787 Constitution, in 1868 in the Fourteenth Amendment, and now today. Odd items are included, as in this post of an immediate interest.

Dont Give Up the Ship

It’s a Navy’s theme, “Dont Give Up the Ship”, taken (with apostrophe omitted) from the dying words of a ship commander in the War of 1812. Flying in the Navy I had an engine problem and landed at the nearest airport, a civilian one; mechanics there could fix the problem. In the meantime I was going off base to eat. But then I heard from my squadron, my XO saying “don’t leave the plane”. You have to stay with the plane no matter where or what; it’s all part of a bigger deal. Right now, though, that deal, “Dont Give Up the Ship” seems disrespected. Here’s how.

Two Navy boats (“riverine command boats”) on Jan. 12 departed Kuwait. At about 2:00 p.m. they were to be refueled a cutter. At 2:10 GMT, though, the Navy received a report that the boats were held by Iranians. As Iran then showed, the boats and crew had been captured. Sailors were kneeling down, all under Iranian guns. The boat commander then apologized to the Iranians.

All of this took place on the day of President Obama’s “State of the Union” message. The next day the crews were released. Just a few days ago, Iran’s Ayatollah Ali Khamenei awarded medals to Revolution Guard members involved in the capture. (As a matter of course, Iran probably used the boats and hostages as tender for the US advancing that nation 1.5 billion dollars, which is another story.)

Right now, the problem is how so quickly we slipped by “Dont Give UP the Ship”. How did the Revolutionary Guard capture the boat? Why did the boat commander so quickly apologize? The answer, as said by our administration, is diplomacy. –Maybe in political circles but not for the military. The military view is offered by Capt. Tuma, retired, in a Jan. 25 article in the Navy Times. His script is Defense Department Instruction 1300.21. From that text he asked:

“Did Navy commanders adequately prepare their personnel for operations in a hostile environment, the Persian Gulf? a. Were personnel briefed on the intentions and capabilities of hostile forces in the area? b. Were personnel briefed on authorized actions in the event they were confronted by hostile forces? c. What force were personnel permitted to use to avoid capture?”

And “Did the commanders . . . carry out their duties?” Until those questions are answered, the Naval Academy store should suspend its sales of Dont Give Up the Ship tee shirts.