[This is Larry again. As you know, recently we’ve taken an interest in Ted Cruz and his campaign to be our next President. We’re not impressed by him, thinking that, really, he’s too much in love with the sound of his own voice. Also, he seems to lack the temperament for foreign policy. If the Russians disagree with us on one thing or another, it’s probably not a good idea to open discussions by calling down the wrath of God. That’s the kind of thing theocracies do on the other side of the world; it’s not our style here in the U.S. Also, while we have fire and brimstone in our arsenals, the Russians have it as well. We probably shouldn’t frighten them with loose talk about making their neighborhoods glow with radioactivity, just because we’re unable to dislodge a few nearby guerillas. As we’ve said before – and it’s Herman Kahn’s idea[1], not ours – it’s easy to start a nuclear war; all you have to do is convince the other side that war is inevitable. Then they’ll strike, just to gain the advantage of going first. On the other hand, if your foreign policy is to facilitate the End Times, then perhaps a nuclear war is the way to go. Nobody wants that, right?

Then of course there’s Ted Cruz’s loose talk about saving the U.S. Constitution[2], most likely from our courts and judges. It’s not always clear, to me at least, which decisions Mr. Cruz is most concerned about. I’ll take a wild guess, and suggest that the Supreme Court’s recent opinion on gay marriage[3] ranks high on his list. But I do know one part of the Constitution he’s not interested in preserving. That’s, of course, Article II Section 1, which says “No Person except a natural born Citizen … shall be eligible to the Office of President ….”[4] The term “natural born” means born in this country, not somewhere else. All reports are that Ted Cruz was born in Canada, not here. That makes him ineligible, period.

And how do I know that’s the case? Well, because our Founders used a term of art – “natural born” – that had a definite and specific meaning when they used it. If you look at contemporary legal writings, for example at William Blackstone’s Commentaries on the Laws of England,[5] you’ll see that he divided the people of a country into those born inside or outside of it. “Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or, as it is generally called, the ligeance of the king; and aliens, such as are born out of it.[6]

As you might guess, we’ve had some blowback on our interpretation.

  • Some people say the Ted Cruz is a citizen, so why look any further than that? Isn’t it true, Mr. Larry, that you’ve changed your interpretation since you first wrote about the issue?
  • Others say that anyone who raises the issue is a crackpot “birther,” and should have his head examined.
  • Still others argue that people better than I have written articles on this, so why do I bother?
  • And a few ask a substantive question, i.e., “what evidence is there – other than those few words in Article II, Section 1 – that the Founders really thought one’s place of birth was important? Isn’t it weird or strange to make that kind of argument today?]

Ted Cruz is a citizen, so why look any further than that? Isn’t it true, Mr. Larry, that you’ve changed your interpretation since you first wrote about the issue?

Let me clear about this. The answer is “yes and no.” The thing is, when I first looked at the Blackstone quote, which is a key to my analysis, I completely misread it. The original is in old English, that is, it follows spelling conventions and a vocabulary we don’t use today. So when I read the part about how natural born citizens are born in the Crown’s territory or the king’s “ligeance,” I thought it meant, in modern terms, in the king’s allegiance and dully translated it that way. I warned you at the time that I was translating, and if you thought I had made mistakes, probably you were correct.

I was sort of right but mostly wrong when I substituted “allegiance” for “ligeance.” Actually “ligeance” is a now obsolete word that means “the territory subject to a king.”[7]  So under Blackstone one is “natural born” if one is born in the Crown’s territory, or the king’s[8]. That’s two ways to say the same thing.

There, aren’t you glad you asked? My original mistake complicated matters more than they needed to be. It’s not necessary to talk about a newborn’s “allegiance” at birth. If a baby is born in the territory of a Government, it’s a “natural born” citizen; if it’s born outside the territory, it’s an alien to that Government. People who are born elsewhere can be made citizens – in this country Congress has specific authority to develop rules for that[9] – but Congress can’t change the fact of one’s birth.  At least, that’s the way the Founders seemed to look at it.

Was it really necessary to go into all of this detail? Probably not, but here at Elemental Zoo Two we like to correct our mistakes when we find them. That’s what we do. I wonder what our critics do when they’re mistaken? Hide?

Anyone who raises the “natural born” issue is a crackpot “birther,” and should have his head examined.

Well, I’m not so sure about that. You remember the big argument about President Obama, and his citizenship, don’t you? People – the “birthers” – argued that he wasn’t really the President because he had been born in Kenya, not the U.S.; so he wasn’t a “natural born” citizen within the meaning of Article II. Obama’s answer was that in fact he was born in Hawaii, and Hawaii was at that time and is now part of the U.S. He then produced two Hawaiian birth certificates, one in the short form and the other in the long form, to prove his case. That didn’t satisfy everybody, but most folks decided to let the matter go.[10]

The point is that the President didn’t treat the “birthers” as crackpots. He took their legal point seriously, and produced birth certificates to demonstrate that he’s eligible to be our President. Ted Cruz hasn’t done that, mostly because he was born in Canada, not the U.S. So who’s the real crackpot? Is it the President, who complies with Article II, Section 1, or is it Ted Cruz, who can’t but is running for President anyway?

People better than you have written articles on this, so why do you bother?

Now there’s an argument that goes straight for the jugular. You’re not an expert, Larry, and therefore you’re worthless; so why don’t you just give up writing about this subject? Well, no doubt there are articles on this other than mine; in fact, there’s one about Lawrence Tribe, and his view of Article II, that I found particularly helpful back in January.[11]

But, you know, our old friend Jeremy Bentham warns us against people who pull rank and tell us what to believe. Don’t accept what the authorities say just because they say they’re authorities. You can’t always tell what’s behind the façade and, in any case, oftentimes people demand belief only because they think we’re imbeciles, incapable of “forming a judgment” of our own. [12] “If [we] submit to this insult, may it not be presumed that [we] acknowledge the justice of it?”[13] That’s Bentham’s “fallacy of authority” in a nutshell.

And that’s why we do blog posts here at Elemental Zoo Two: To make up our own minds on some of the issues of the day. And that’s why our blogs have footnotes; so you, the reader, can follow up on our reasoning, check our sources, and draw your own conclusions. Don’t expect FOX or NBC to offer the same kind of service.

What evidence is there – other than those few words in Article II, Section 1 – that the Founders really thought one’s place of birth was important? Isn’t it weird or strange to make that kind of argument today?

Now that’s an interesting question. Up until this week all we had to go on was the Blackstone treatise, which is available online, plus Article II, Section 1 itself. Normally that would seem to be enough, the plain meaning of the words being, shall I say, plain; but recently I discovered two neat books in our library that assemble a good part of the debate and argument that went into writing the Constitution. These are products of the excellent Library of America and are called – Guess what? – The Debate on the Constitution.[14]

Read them if you have the time. They amount to a couple of thousand pages of original source material. The drafting of our Constitution was a complex and messy business. It was written by a convention in Philadelphia and sent out to the states for ratification. Numerous issues were raised in the back-and-forth with the states, with some offering only to “conditionally ratify” it. Once nine states signed on the new government was activated;[15] thereafter, more negotiations and amendments followed for some time; and the final document was accepted by 12 of the 13 original states on September 17, 1787.[16] Congress proposed the first 10 Amendments, aka the “Bill of Rights,” to the states on March 4, 1789; and they were ratified by December 15, 1791.[17]

New York, for one, had a whole series of concerns, proposals, conditions, etc. Most important, for our purposes, New York asked Congress take “all reasonable means” to amend the Constitution to provide that   “no person, except natural born citizens … shall be eligible to the places of President, Vice President, or members of either house of the Congress of the United States.”[18] At the moment I don’t know what happened to this proposal vis-à-vis senators and representatives; those are important jobs and you can see why some might think that they too should be held only by people born here; but I do know, for sure, that the President has to be natural born. It says so, right there, in Article II, Section 1. The New Yorkers got their way on that score.

So I would say that, given the historical context and the express words of Article II, Section 1, it’s not weird or strange to say that you have to be born here to be our President. The people who argue otherwise are, well, just plain wrong.

 

[1] See Kahn, On Thermonuclear War (Princeton, 1960, Transaction reprint, 2010). Henceforth the Kahn book will be cited as Thermonuclear War at ___. See Thermonuclear War at p. 136.

[2] For an authoritative version the U.S. Constitution, and its Amendments, check out the National Archives. For the U.S. Constitution, go to: http://www.archives.gov/exhibits/charters/constitution.html . That’s the version we’ll be citing here.

[3] The case is Obergefell v. Hodges, decided last June. We’re going to do a blog on it one of these days, perhaps when the debate about  Justice Scalia’s replacement heats up a bit. In the meantime, take a look at the Wikipedia entry on “Same-sex marriage in the United States,” at https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States

[4] See U.S. Constitution, Article II, Section I: “No Person except a natural born Citizen … shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

[5] For a general history of Blackstone’s Commentaries, see the Wikipedia entry at https://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_England. If you want to look at the volume we cite, go to The Federalist Papers Project, Blackstone, Commentaries on the Laws of England – Volume One, available at http://www.thefederalistpapers.org/political-philosophers/william-blackstone/commentaries-on-the-laws-of-england-volume-one . This is the 3rd Edition, printed in Oxford in 1768. Hereafter it will be cited as Blackstone Vol. 1 at __. There are other sources as well, most notably at the Yale Law School, Lillian Goldman Law Library, at http://avalon.law.yale.edu/18th_century/blackstone_bk1ch10.asp Yale has a slightly earlier edition.

[6] See Blackstone Vol. 1 at Ch. 10, The Rights of Persons, p. 366.

[7] See The Compact Edition of the Oxford English Dictionary, Complete Text Reproduced Micrographically (Oxford University Press, 1971) at Vol. 2, ligeance, p. 268 – 269: “1. The obligation of a liege man to his liege lord; the duty of fidelity of a subject to his sovereign or government … 2. The sway or jurisdiction of a sovereign over his subjects or lieges; the territories subject to a sovereign.”  Now only in legal use, for example: “All persons born out of the ligeance of the Crown of England.”

[8] See also Dictionary.com, ligeance, available at http://dictionary.reference.com/browse/ligeance .

[9] That’s under Article I, Section 8 of the Constitution.

[10] See the Wikipedia entry on Barack Obama citizenship conspiracy theories, available at https://en.wikipedia.org/wiki/Barack_Obama_citizenship_conspiracy_theories

[11] See The New York Times, Hulse, It May Be Time to Resolve the Meaning of ‘Natural Born’ (Jan. 18, 2016), available at http://www.nytimes.com/2016/01/19/us/politics/it-may-be-time-to-resolve-the-meaning-of-natural-born.html?_r=0

[12] See Bentham & Bingham, The Book of Fallacies: From unfinished Papers of Jeremy Bentham (London, 1824; Nabu reprint, circa 2010) at Fallacies of Authority, p. 46:

[13] Id. at p. 47.

[14] See The Debate on the Constitution, Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, Part One (September 1787 to February 1788) and Part Two (January to August 1788) (both LOA 1993). Henceforth these will be cited as DoC Part One or DoC Part Two at __.

[15] See DoC Part One at Chronology of Events, p. 1055 – 1115, especially p. 1098.

[16] The ratification data appear at the end of the National Archives transcript. See note 2.

[17] The “Bill of Rights,” also maintained by the National Archives, appears in transcript form at http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

[18] See DoC Part Two at Ratification of the Constitution by the Convention of the State of New York, p. 536 – 545, especially p. 541- 542. There are exceptions, not relevant here, for people who served in the war, etc. Ted Cruz wouldn’t qualify for any of those.

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