Pebbles And Pearls

by Paul R. Hollrah –

The amount of information circulating on the Internet and in legal circles regarding presidential eligibility is enough to make one’s head spin. However, as in everything else, there are pearls of wisdom and there are meaningless pebbles of misconception. Unfortunately, the number of contrived arguments supporting the presidential eligibility of Barack Obama, Ted Cruz, Bobby Jindal, and Marco Rubio are as numerous as pebbles on a beach, and just as useful, while the well-reasoned arguments to the contrary are like rare pearls among the pebbles.

To cite just two examples: in the category of “pebbles” we have a March 11, 2015, Harvard Law Review article by two former U.S. Solicitors General, Neal Katyal and Paul Clement, titled, “On the Meaning of ‘Natural Born Citizen,’ ” while in the category of “pearls” we have a March 26, 2015, article by JB Williams, titled, “The End of the American Presidency.”

In their Harvard Law Review article, Katyal and Clement conclude, correctly, that “a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth…” However, they go on to assert, wrongly, that “the phrase ‘natural born Citizen’ in the Constitution encompasses all such citizens from birth.” As former Solicitors General, both men should know better.

Katyal and Clement write that, “All the sources routinely used to interpret the Constitution confirm that the phrase ‘natural born Citizen’ has a specific meaning, namely, someone who was a U.S. citizen at birth…” To the contrary, the phrase “natural born Citizen” does not in all cases describe someone who was a U.S. citizen at birth… far from it. To conclude that it does so is to accept the terms “citizen” and “natural born citizen” as synonymous. They are not. Simply put, all “natural born” citizens are “citizens at birth,” but not all “citizens at birth” are “natural born.”

To accept Katyal and Clements’ definition of “natural born” it is necessary to accept that so-called “anchor babies,” or “14th Amendment babies,”… children born to foreign mothers who make their way to America for no other reason than to have their children born on American soil… are “natural born” citizens and eligible to serve as president of the United States. It is a preposterous notion on its face and the American people will never accept that definition.
In arguing their case for the contemporary definition of the term, Katyal and Clement cite an analysis prepared jointly by two of the nation’s most prominent attorneys: Theodore Olson, a conservative Republican, and Lawrence Tribe, of Harvard Law School, a liberal Democrat. In 2008, at the behest of the U.S. Senate, Olson and Tribe prepared a legal opinion regarding John McCain’s status as a “natural born” citizen. Olsen and Tribe concluded as follows: “Based on original meaning of the Constitution, the Framers’ intentions, and subsequent legal and historical precedent, Sen. McCain’s birth, to parents who were U.S. citizens serving on a U.S. military base in the Panama Canal Zone in 1936, makes him a ‘natural born Citizen’ within the meaning of the Constitution (italics added).”

This was followed by an April 30, 2008 Senate resolution, approved by a vote of 99-0 (Senator John McCain abstaining). The resolution declared: “Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now, therefore, be it Resolved, That John Sidney McCain, III, is a ‘natural born citizen’ under Article II, Section 1, of the Constitution of the United States.”

It is important to note that both references… the Olson-Tribe Memorandum and the U.S. Senate Resolution… utilize the plural terms “parents” and “citizens,” suggesting beyond a reasonable doubt that the “natural born” question rests principally on the necessity of both parents being U.S. citizens. Katyal and Clement conveniently ignore that critical determining factor.

To further undermine their own argument, Katyal and Clement quote Justice Joseph Story’s Commentaries on the Constitution (1833) in which he declared that the purpose of the natural born clause was to “cut off all chances for ambitious foreigners, who might otherwise be intriguing for the office, and interpose a barrier against those corrupt interferences of foreign governments in executive elections.”

This is merely another way of saying that the most influential factor in a child’s upbringing is the parenting he/she receives as a child, and that the fundamental cultural, philosophical, political, and religious influence of a child’s parents establishes the direction of his/her future conduct. Accordingly, what the Founders feared most was the danger that a future president… during his formative years and during the years in which he was developing intellectually… would be exposed to an environment in which he would come to reject the values and the principles embodied in the U.S. Constitution.

There could be no better example of the poisonous impact of exposing a child to un-American influences during his formative years than Barack Obama. Obama’s mother, Stanley Ann Dunham, was a radical left “flower child” of the ‘50s and’60s. His father was a black African socialist from Kenya, and he spent most of his childhood as a citizen of Indonesia, where his name was changed to Barry Soetoro and his religious preference, shown on existing school records, was “Islamic.” Then, after being shipped back to Hawaii at age 10, he was mentored by a dedicated black communist, Frank Marshall Davis, a man with an extensive FBI dossier.

It is for that very reason that the Founders limited access to the presidency only to those whose parents were totally free of foreign allegiance or influence. As John A. Bingham, chief framer of the 14th Amendment, wrote in 1866, “Every human being born within the United States of parents not owing allegiance to any foreign sovereignty (italics added) is, in the language of the Constitution itself, a natural born citizen.”

The misconception created by the Katyal-Clement piece, based primarily on a disregard for the difference between the singular and the plural form of the words “parent” and “citizen,” is in sharp contrast to the thoughtful and well-researched analysis of Senator Ted Cruz’s eligibility, titled, “The End of the American Presidency,” by writer JB Williams.

Ted Cruz was born in Calgary, Alberta, Canada on December 22, 1970. His parents were Rafael Bienvenido Cruz, a citizen of Cuba, and Eleanor Elizabeth Darragh Wilson, a native of the State of Delaware. As Williams points out, Cruz was born a Canadian citizen and remained a citizen of Canada until May 14, 2014, when, amidst pressure from his Tea Party supporters, he began to entertain an ambition to run for president of the United States. Cruz first disclosed his Canadian citizenship to the people of Texas in 2013 after being elected to the U.S. Senate, an office that requires U.S. citizenship, but not “natural born” citizenship. However, we must assume that, as his presidential ambitions blossomed, he was reminded that his Canadian citizenship prohibited him from meeting the “natural born” standard of the U.S. Constitution.

Accordingly, on May 14, 2014, in a fruitless attempted to satisfy that deficiency, he renounced his Canadian citizenship. In spite of being a Harvard-trained lawyer he apparently failed to consider that, while it is possible to exchange one’s Canadian citizenship for American citizenship through the naturalization process, it is no more possible to convert from Canadian citizenship to “natural born” American citizenship than it is to change the color of one’s eyes from blue to brown by merely signing a legal document. If one has natural born citizenship at birth, it is impossible to lose it. Conversely, if one is not a natural born citizen at birth, it is impossible to acquire it at a later date, by any means.

In response, Cruz’s supporters insisted that he was a “dual citizen” of the U.S. and Canada. This led them to conclude, mistakenly, that he was also a “natural born” citizen. Unfortunately, as Williams notes, there are no documents to show that, during his years in Canada, Cruz’s parents registered him with U.S. immigration authorities as a dual US-Canadian citizen. If Cruz cannot show that such documentation exists, it means that he lived his entire life as a Canadian citizen with no formal ties to the United States. If such is the case, the renunciation of his Canadian citizenship has inadvertently made him a man without a country. Not only is he not a “natural born” citizen, eligible to serve as president of the United States, he is not even a citizen and his seat in the U.S. Senate would have been won through fraud and deception..

If Cruz is unable to show that his parents did, in fact, register him as a dual US-Canadian citizen at birth, so that he can rightly claim U.S. citizenship by descent from his mother, all is not lost. Cruz can yet redeem himself by publicly announcing, “I have discovered that, because I was born in Canada, the son of a Cuban-Canadian father, I am, like Barack Obama, constitutionally ineligible to serve as president of the United States. However, since Obama has established the precedent of illegally occupying the Oval Office, I feel that I must run because someone must reverse the damage of the Obama era and restore this once great nation to its former greatness.”

It is interesting to note that, of the six men mentioned above, five are graduates of Ivy League schools. Obama, a Harvard Law graduate, claims to have been a “professor” of constitutional law at the University of Chicago; Ted Cruz, a Harvard Law graduate, is a former Solicitor General of the State of Texas; Bobby Jindal, a Rhodes Scholar, is a graduate of Brown and Oxford Universities; Neal Katyal, a graduate of Yale Law School, is a former Solicitor General of the United States in the Obama administration; and Paul Clement, a Harvard Law graduate, is a former Solicitor General in the George W. Bush administration.

All are men who should have a firm grasp of Constitutional principles. Yet, their inability to accept the most elementary concepts of presidential eligibility makes a correspondence school law degree a viable alternative to an Ivy League education. | April 4, 2015

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