Natural Born Citizen: Ted Cruz's Eligibility For President Is An Open Question

I am a Ted Cruz fan. If my endorsement means anything, I back him as a presidential candidate and likely intend to vote for him. Yet I will not lie or be a hack. The likes of Mark Levin, Hugh Hewitt, others on talk radio and elsewhere, claiming it is an open and shut case that Ted is eligible to be President are being misleading and being total shills for Cruz. The Constitution requires a "natural born citizen" be President (Article II, Section1, Clause 5). This is distinct from a "naturalized" citizen, or a citizen in accord with congressional statute. The founders were intimately aware of English common law and Sir William Blackstone when they ratified the Constitution. Blackstone wrote that "natural-born subjects are such as are born within the dominions of the crown of England" and that, in contrast, "naturalization cannot be performed but by act of parliament." Does Ted Cruz meet the requirements for the highest office? Let's not pretend it's not an issue worthy of being litigated. I for one would be mighty interested to see how Clarence Thomas would rule on the question. In fact, Ted Cruz was born abroad to an American mother, and prior to May 24, 1934, U.S. citizen mothers were not permitted to transmit U.S. citizenship to their children born abroad (prior to 1934 children born outside the limits and jurisdiction of the United States acquired citizenship at birth if they had American fathers, unless the father had never "resided" in the United States prior to the child's birth). Suffice it to say that Donald Trump is not at all wrong in saying it is an open question, especially if one believes the only proper method of Constitutional interpretation is to look toward original meaning.

The question becomes what "natural born citizen" meant at the time of ratification. Was the original intent that the Constitutional clause would be subject to Congressional statute? Some have made this argument. Perhaps, but if so, it would be quite an anomalous provision in the Constitution (after all, you don't need a Constitutional provision to set a requirement subject to Congress, the whole point generally is that Congress is supposed to be subject to the Constitution). What was the original meaning of the phrase? That alone should be dispositive. While I am not completely certain, let's not be hacks and pretend the question suddenly went away because it's our guy running for office.

I can't see why Blackstone's views would not affect originalist exegesis. Why would that not be the case? That seems mighty odd. Granted, reading the natural born citizen clause to mean "anyone Congress says is a citizen at birth" is a possibility. Maybe. But are you truly convinced of that? A recent article in Washington Post arguing the opposite said that James Madison, known as the “father of the Constitution,” stated, “It is an established maxim that birth is a criterion of allegiance. . . . [And] place is the most certain criterion; it is what applies in the United States.”  In originalist circles there is clearly an open question. Why the need to pretend the answer is obvious? It's not. The whole Obama birther movement was based on him being born in Kenya, and nobody responded to it saying it made no difference because he had an American mother. Instead they proved he was born in Hawaii. Prior to these "birther" movements it seemed to be a rather broad consensus, taught in basic civics or government classes, that one had to be born in the United States to be President. Why were we all being taught that? Am I supposed to wipe my memory drive clean and pretend I never heard that before? That it wasn't the "consensus" before the new consensus. 

The main substance of John Eastman's argument in National Review argues that the 1790 naturalization act says what Congress considered "natural born citizen" within that statute. It is certainly interesting that they used the same phrase as the Constitution, and maybe that alone should be dispositive as to fact that they meant to leave it open to Congress to decide who was a citizen at birth, and only those people were eligible for the Presidency. Or maybe not, because typically we don't look to acts of Congress to define a Constitutional provision, let alone one replaced in 1795. See, the argument then goes not that he is a "natural born citizen" based on the 1790 statute, since that's long gone, and replaced within a few years, but rather the 1934 one. And that statute defining him as a citizen at birth makes him a "natural born citizen." Again, maybe. That seems to run against Blackstone's distinction, but it seems to also run against the basics of "originalist" jurisprudence. Then again, some are arguing that's what they originally had in mind. Maybe. Even if that is right, and it may very well be, don't tell me this is obvious, open and shut, legal consensus, against "birtherism." That's baloney, and I say that as a person who is big fan of both Cruz and John Eastman (who on this issue, in line with his politics, suddenly agrees with the other "smart guy" on Hewitt's show, the liberal "living Constitutionalist" Erwin Chemerinsky). 

Also, the idea that this would affect those born to military members overseas is a red herring.  A leading authority in England prior to Blackstone was Edward Coke, who wrote about this subject in Calvin's Case. According to Coke: "[I]f any of the King's ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King's dominions." One could easily argue that those posted overseas in service to the government, such as members of the military, would be treated no different than an ambassador in this regard. Tweet

ARE WE BEING LIED TO ABOUT THE SAILORS TAKEN INTO CAPTIVITY? TEN QUESTIONS THAT REQUIRE ANSWERS

 The Iranians taking our sailors into custody stinks to high heaven. We are not getting the real story or any true transparency. Am I supposed to believe, as Biden put it, that this was a "rescue mission" and "standard nautical practice?" Here are 10 very basic common sense questions the Obama administration and Navy should have to answer post haste:

 1. Our seamen get taken by Iran rarely, if ever, and they are suddenly taken into Iranian custody on Monday. Am I supposed to believe it is pure coincidence that Iran takes sailors into custody a few hours before the State of the Union? Days before billions and billions of dollars are being released to Iran? Is the timing really just pure chance or did it play a role in this happening precisely when it did?

2. A former Naval Commander stationed in Bahrain said, per CNN, that there is "no reason for a small vessel to be out that far and especially without escorting ships around it." Where are the other ships? The Commander also said: "The Navy has to explain why you have small ships transiting 300 miles of open ocean." How did these two boats end up alone out there just hours before SOTU? CNN sent this Commander's questions to the Pentagon and they "declined to comment."

3. Per Popular Mechanics, the Riverine Command Boats (RCBs) have a crew of 5 and can carry up to 20 passengers. 10 sailors were held by Iran. Why would they surrender in both boats rather than board a single boat before being taken captive, perhaps even attempting to tow the other?

4. Each of these boats had twin inboard diesel engines. The RCBs use Swedish-made Scania diesel engines coupled to Rolls-Royce FF410 waterjets to reach speeds of more than 43 knots. That means there would have been a total of four engines between these two boats. With that many engines in play, were there no opportunities of escape or evasive action prior to capture? Was there no possibility of one boat being able to tug the other before ending up in Iranian waters?

5. Is it standard rules of engagement for U.S. service members to surrender on their knees? Was no evasive action attempted before this? There are four mounts for machine guns which can handle M2HB .50-caliber heavy machine guns, GAU-19 .50-caliber miniguns, and M240 medium machine guns. Typically a RCB mounts one of each, with one .50 caliber station sometimes mounting two heavy machine guns. The boats are also equipped with a Mk49 remote control weapons station equipped with a M2HB heavy machine gun. Developed by Israeli defense contractor Rafael, the Mk49 has a 360 degree arc of fire. The armor on these boats provides protection from up to 7.62-millimeter bullets.

 6. RCBs are packed with sensors and communications gear. The Sea FLIR III infrared sensor system features a thermal imager sensor, laser rangefinder, and autotracker, all on a gyro-stabilized package to keep the image stable on a rocking boat. So how did they end up in Iranian waters? Further, the latest in communications allows the boats to communicate with other navy ships, aircraft, and even ground forces. Immediately upon entering Iranian waters or well before was there no communication to the U.S. Navy to provide rescue? Or is it standard procedure when in mechanical failure to await surrender one one's knees before an enemy rather than call for back-up?

 7. Even non-soldiers know that per the Geneva Conventions one communicates only name, rank, and serial number. The military’s code of conduct requires prisoners to resist providing propaganda statements. Why would one of the sailors provide a video apology? What exactly were the orders this group was operating under? From who at the highest level did those orders come from?

 8. Instead of reacting like there was a crisis, every high ranking official in the government went to listen to a speech within a couple hours. They then immediately began saying there would be a release because of cooperativeness resulting from the "Iran deal." Why was no one acting like there was an emergency situation? Why was this spin ready so early?

9. Rep. Louie Gohmert (R-TX) told an interviewer that the Obama administration alerted Iranian forces as to the "mechanical failure." Is there any credence to this claim? If so, is there any possible way to explain alerting the enemy rather than the Navy?

10. When American Navy members are shown on camera on their knees surrendering and on the floor in captivity, with the female being forced to wear a hijab, when those pictures are paraded in the media in violation of international law, is it standard procedure to thank the hostile force on video and in writing? This doesn't pass the smell test. It's worse than fishy. In case you think I am being overly conspiratorial, please recall that there's precedent for dishonesty. Anyone remember Bowe Berghdal? The initial stories from the White House were total lies. It took forever for the truth to get out, and the White House knew the full story from the start. The Army went along because they were under orders. So forgive me if I don't take every word coming from this White House when so many very basic questions remain unanswered. Unless a lot more answers are provided, I am forced to conclude we are not getting the full story, and may be intentionally being lied to.

UPDATE:  Pentagon is already changing their story: http://www.foxnews.com/politics/2016/01/14/carter-says-navigation-error-not-mechanical-problem-put-us-boats-in-iranian-waters.html  Tweet