Wong Kim Ark says Ted Cruz not eligible

United States v. Wong Kim Ark

169 U.S. 649 (1898)

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U.S. Supreme Court

United States v. Wong Kim Ark, 169 U.S. 649 (1898)

United States v. Wong Kim Ark

No. 18

Argued March 5, 8, 1897

Decided March 28, 1898

169 U.S. 649

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF CALIFORNIA

 

28 Stat. 111. And it has since been decided, by the same judge who held this appellee to be a citizen of the United States by virtue of his birth therein, that a native of China of the Mongolian race could not be admitted to citizenship under the naturalization laws. In re Gee Hop (1895), 71 Fed.Rep. 274.

The Fourteenth Amendment of the Constitution, in the declaration that

“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,”

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 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

Page 169 U. S. 703

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.

The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away. “A naturalized citizen,” said Chief Justice Marshall,

Reading on;

Twiss, in his work on the Law of actions, says that

“natural allegiance, or the obligation of perpetual obedience to the government of a country wherein a man may happen to have been born, which he cannot forfeit, or cancel, or vary by any change of time or place or circumstance, is the creature of civil law, and finds no countenance in the law of nations, as it is in direct conflict with the incontestable rule of that law.”

Vol. 1, p. 231.

Before the Revolution, the view of the publicists had been thus put by Vattel:

“The natives, or natural-born citizens, are those born in the country of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this in consequence of what it owes to its own preservation, and it is presumed as matter of course that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children, and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

Book I, c.19, § 212.

“The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. . . . The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction.”

And to the same effect are the modern writers, as for instance,

reading on;

In his work on Conflict of Laws, § 48, Mr. Justice Story, treating the subject as one of public law, said:

“Persons who are born in a country are generally deemed to be citizens of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity, or occasional business. It would be difficult, however, to assert that, in the present state of public law, such a qualification is universally established.”

and this was reenacted June 22, 1874, in the Revised Statutes, section 1992. .

The words “not subject to any foreign power” do not, in themselves, refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that nevertheless they may be subject to the political jurisdiction of a foreign government. In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens.

The allegiance of children so born is not the local allegiance arising from their parents’ merely being domiciled in the country, and it is single and not double, allegiance. Indeed, double allegiance, in the sense of double nationality, has no place in our law, and the existence of a man without a country is not recognized.

In his Lectures on Constitutional Law, p. 79, Mr. Justice Miller remarked:

“If a stranger or traveler passing through, or temporarily residing in, this country, who has not himself been naturalized and who claims to owe no allegiance to our Government, has a child born here which goes out of the country

Page 169 U. S. 719

with its father, such child is not a citizen of the United States, because it was not subject to its jurisdiction.”

https://supreme.justia.com/cases/federal/us/169/649/case.html

Rafael Cruz is not eligible to run for the Presidency. 

Thank you Ann Coulter

WE’RE ALL RUTH BADER GINSBURG NOW

January 13, 2016

If Ted Cruz is a “natural born citizen,” eligible to be president, what was all the fuss about Obama being born in Kenya? No one disputed that Obama’s mother was a U.S. Citizen.

Cruz was born in Canada to an American citizen mother and an alien father. If he’s eligible to be president, then so was Obama — even if he’d been born in Kenya.

As with most constitutional arguments, whether or not Cruz is a “natural born citizen” under the Constitution apparently comes down to whether you support Cruz for president. (Or, for liberals, whether you think U.S. citizenship is a worthless thing that ought to be extended to every person on the planet.)

Forgetting how corrupt constitutional analysis had become, I briefly believed lawyers who assured me that Cruz was a “natural born citizen,” eligible to run for president, and “corrected” myself in a single tweet three years ago. That tweet’s made quite a stir!

But the Constitution is the Constitution, and Cruz is not a “natural born citizen.” (Never let the kids at Kinko’s do your legal research.)

I said so long before Trump declared for president, back when Cruz was still my guy — as lovingly captured on tape last April by the Obama birthers (www.birtherreport.com/2015/04/shocker-anti-birther-ann-coulter-goes.html).

The Constitution says: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

The phrase “natural born” is a legal term of art that goes back to Calvin’s Case, in the British Court of Common Pleas, reported in 1608 by Lord Coke. The question before the court was whether Calvin — a Scot — could own land in England, a right permitted only to English subjects.

The court ruled that because Calvin was born after the king of Scotland had added England to his realm, Calvin was born to the king of both realms and had all the rights of an Englishman.

It was the king on whose soil he was born and to whom he owed his allegiance — not his Scottish blood — that determined his rights.

Not everyone born on the king’s soil would be “natural born.” Calvin’s Case expressly notes that the children of aliens who were not obedient to the king could never be “natural” subjects, despite being “born upon his soil.” (Sorry, anchor babies.) However, they still qualified for food stamps, Section 8 housing and Medicaid.

Relying on English common law for the meaning of “natural born,” the U.S. Supreme Court has repeatedly held that “the acquisition of citizenship by being born abroad of American parents” was left to Congress “in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.” (U.S. v. Wong Kim Ark (1898); Rogers v. Bellei (1971); Zivotofsky v. Kerry (2015), Justice Thomas, concurring.)

A child born to American parents outside of U.S. territory may be a citizen the moment he is born — but only by “naturalization,” i.e., by laws passed by Congress. If Congress has to write a law to make you a citizen, you’re not “natural born.”

Because Cruz’s citizenship comes from the law, not the Constitution, as late as 1934, he would not have had “any conceivable claim to United States citizenship. For more than a century and a half, no statute was of assistance. Maternal citizenship afforded no benefit” — as the Supreme Court put it in Rogers v. Bellei (1971).

That would make no sense if Cruz were a “natural born citizen” under the Constitution. But as the Bellei Court said: “Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.” (There’s an exception for the children of ambassadors, but Cruz wasn’t that.)

So Cruz was born a citizen — under our naturalization laws — but is not a “natural born citizen” — under our Constitution.

I keep reading the arguments in favor of Cruz being a “natural born citizen,” but don’t see any history, any Blackstone Commentaries, any common law or Supreme Court cases.

One frequently cited article in the Harvard Law Review cites the fact that the “U.S. Senate unanimously agreed that Senator McCain was eligible for the presidency.”

Sen. McCain probably was natural born — but only because he was born on a U.S. military base to a four-star admiral in the U.S. Navy, and thus is analogous to the ambassador’s child described in Calvin’s Case. (Sorry, McCain haters — oh wait! That’s me!)

But a Senate resolution — even one passed “unanimously”! — is utterly irrelevant. As Justice Antonin Scalia has said, the court’s job is to ascertain “objective law,” not determine “some kind of social consensus,” which I believe is the job of the judges on “American Idol.” (On the other hand, if Congress has the power to define constitutional terms, how about a resolution declaring that The New York Times is not “speech”?)

Mostly, the Cruz partisans confuse being born a citizen with being a “natural born citizen.” This is constitutional illiteracy. “Natural born” is a legal term of art. A retired judge who plays a lot of tennis is an active judge, but not an “active judge” in legal terminology.

The best argument for Cruz being a natural born citizen is that in 1790, the first Congress passed a law that provided: “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.”

Except the problem is, neither that Congress, nor any Congress for the next 200 years or so, actually treated them like natural born citizens.

As the Supreme Court said in Bellei, a case about the citizenship of a man born in Italy to a native-born American mother and an Italian father: “It is evident that Congress felt itself possessed of the power to grant citizenship to the foreign born and at the same time to impose qualifications and conditions for that citizenship.”

The most plausible interpretation of the 1790 statute is that Congress was saying the rights of naturalized citizens born abroad are the same as the rights of the natural born — except the part about not being natural born.

Does that sound odd? It happens to be exactly what the Supreme Court said in Schneider v. Rusk (1964): “We start from the premise that 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. (Article II, Section 1)”

Unless we’re all Ruth Bader Ginsburg now, and interpret the Constitution to mean whatever we want it to mean, Cruz is not a “natural born citizen.”

Take it like a man, Ted — and maybe President Trump will make you attorney general.

COPYRIGHT 2016 ANN COULTER

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http://www.anncoulter.com/columns/2016-01-13.html