Monday, May 4, 2015

Harvard Law, Ted Cruz and "natural born Citizen"

In March, the Harvard Law Review stepped into the political arena with an article by two former Solicitor Generals, Paul Clement and Neal Katyal. They wrote a Note seeking to establish that the Republican Presidential Candidate Ted Cruz was eligible to be President under Article II of the Constitution.  Article II requires, among other conditions precedent, that the President be a "natural born Citizen".  In their Note -- “On the Meaning of Natural Born Citizen” -- Clement and Katyal argue that "natural born Citizen" means all those who were: "U.S. citizen at birth with no need to go through a naturalization proceeding at some later time."

This legally-indefensible argument deserves refutation given that it comes ex cathedra from the prestigious Harvard Law Review. Grotesquely, six of the nine sitting Supreme Court Justices graduated from Harvard Law School:  Ruth Bader Ginsburg, Antonin Scalia, Anthony M. Kennedy, Stephen G. Breyer, John G. Roberts, Jr., Chief Justice, and Elena Kagan.

Hence, the distinctive intellectual bias of graduates of that law school has a disproportionate impact on the direction of law in the United States. The Harvard Law Review has refused to publish my Response to the Note of Paul Clement and Neal Katyal: “On the Meaning of Natural Born Citizen”.  I post it here for what it is worth. I guess the powers-that-be believe that there is no sense in muddying the intellectual waters with the apparently pre-ordained Harvard Law School coronation of Senator Cruz as "eligible" to be President by allowing my Response to be published.

In sum, in my Response, I refute the arguments of Messrs. Clement and Katyal, and conclude as follows:
Thus, I must maintain that the manipulation of the framingera sources and law by Messrs. Clement and Katyal to conclude that Senator Ted Cruz is eligible to be President cannot stand.  They conclude: “Thus, an individual born to a U.S. citizen parent -- whether in California or Canada or the Canal Zone -- is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose.”  The British statutes, Blackstone,  de Vattel, The Naturalization Act of 1790 and the holding in Minor v. Happersett are all consistent: “natural born Citizen” is a privilege bestowed upon a special class of U.S. Citizen, to wit, a child born of two U.S. Citizen parents.
Thus, insomuch as  Marco Rubio and Bobby Jindal were born in the United States to parents none of whom were United States citizens at the time of these gentlemen's respective births and Ted Cruz was born in Canada to parents only one of whom (his mother) was a United States citizen, none of these fine gentleman are eligible to be President of the United States.


Unknown said...

The Framers of the Constitution considered both Blackstone and Vattel, and choose Vattel. The Founders put into the Constitutional a loyalty requirement that cannot be claimed by any other country but the United States. By including both parents and the location of birth, Vattel takes away any doubt as to where the loyalties of the natural-born Citizen belong. No claim of blood or soil allegiance by another country is possible. Therefore, Vattel’s definition is the only one in harmony with John Jay’s letter to General Washington.

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