- Law Cases
by Ron Smith, ©2016
(Feb. 21, 2016) — I hate to use the word ‘liar’ to describe anybody. It sounds so crude. But at some point, you just have to call it the way it is:
Ted Cruz is a liar.
There simply is no other way to put it, and while I could spend the rest of this article detailing dozens of his lies, I’ll instead focus on perhaps his biggest one yet – the outright lie that the 1790 Naturalization Act makes Cruz a natural born citizen, and therefore, eligible to be president.
Now to be fair to Mr. Cruz (cringe), others have used the same lie before to justify John McCain’s eligibility in the 2008 election, and then that same lie was then baked into the laughable article put forth in the Harvard Law Review in March of this year just in time to kick-off the candidacy of the Canadian-born, first-term Senator from Texas.
But for a person who prides himself on being a ‘Constitutional scholar,’ the man obviously knows that by using the law – which was repealed literally more than two centuries ago – he’s simply not telling the truth about the most critical issue of his campaign, which is whether or not he’s eligible to run at all.
Brief Background on The 1790 Act
Under the Constitution, Congress was given the authority to ‘establish an (sic) uniform rule of Naturalization’ so that the new republic could draw up laws and rules for who was a citizen and who wasn’t if they were not part of the ‘original citizens’ that were living on U.S. soil at the time of the adoption of the Constitution in 1787.
One of the issues that had to be addressed is how to classify children who were ‘born abroad to U.S. citizens’, and the First Congress created a law in 1790 to address that very issue.
Many of the original Founders were in that First Congress, and they were obviously very familiar with the term ‘natural born Citizen’ as used in the Constitution to define the citizenship requirement for the presidency. From all available information we have today, it’s clear that the common understanding among the Framers and signers of the document was that the term ‘natural born Citizen’ meant one who was born in the U.S. to two parents who were themselves citizens (see link below to Minor v. Happersett).
Those natural born citizens enjoyed all of the ‘rights and privileges’ that membership in the new nation offered including, but not limited to, the right to own property, and for men, the right to vote.
So when it came time to create a law to define the citizen status of persons born abroad, Congress had to find a simple way to make it clear that those children born abroad to U.S. citizens were on an equal footing with ‘original’ citizens, so in the 1790 law they wrote it as those children “shall be ‘CONSIDERED AS’ natural born citizens” (emphasis added).
And that’s the exact time and place where the current deception took root because it’s clear that Congress never meant to say those children ‘ARE’ natural born citizens. Instead, Congress only was clarifying that they deserve the same ‘rights and privileges’ that are available to ‘natural born citizens’. However, in no way did that phrase stuck in the middle of a law about Naturalization redefine the meaning of the citizenship criteria for president.
In fact, had Congress tried to do that, it would have been unconstitutional on the face of it since Congress can only change the Constitution by Amendment and not by statute. So it may sound like splitting hairs, but if I say, “I CONSIDER YOU AS my brother”, that obviously has a completely different meaning than if I said, “You ARE my brother”. More on this in a moment.
Enter Ted Cruz and The Big Lie:
In a recent Town Hall meeting on CNN, Cruz was asked this by a member of the audience, Julie Hersey:
“In order to prevent future controversy, and possible litigation, will you please justify Constitutionally your legal right to be president of the United States as it relates to your ‘natural born status’?”
And after a brief exchange of pleasantries, Cruz said this:
“Thank you, Julie. I’m happy to, Julie. Thank you for that question. The law under the Constitution, and Federal law has been clear from the very first days of the Republic. The child of a US citizen born abroad is a natural born citizen. What the Constitution requires is for anyone to be president is they have to be a natural born citizen. So if you or I were to travel abroad, and we had a child overseas, that child is a US citizen by virtue of birth.”
Cruz continued: “That’s true if US service members are traveling abroad, if they’re defending this country. You know, Bobby (motions at a previous questioner) mentioned before that he had a couple of deployments … if he had a child overseas, that child is a natural born citizen by virtue of the child’s parents. Likewise, if American Missionaries are traveling overseas, their children are natural born citizens … That’s why John McCain was a natural born citizen, even though he was born in Panama. Because his parents were US citizens. That’s why George Romney, Mitt Romney’s dad, was a NBC even though he was born in Mexico when his parents were Mormon missionaries. And so the law is straight forward, indeed, the very first congress which consisted of many of the framers of the Constitution, the authors of the Constitution wrote the very first laws on citizenship, and they explicitly defined the child of a US citizen born abroad as a NBC.”
So after laying out his version of the 1790 Act, Cruz jumps into his own birth story and says,
“Now my mother was born in Wilmington, Delaware. She is a NBC … I was born in Canada, as you have heard by now (chuckles), but I was a citizen by birth by virtue of my mother’s citizenship, so I’ve never been naturalized … I’ve never breathed a breath of air on this planet when I wasn’t a US citizen. It was the act of being born that made me a US citizen …so under the law, the question is clear. There will still be some who will try to work political mischief on it, but as a legal matter, this is clear and straightforward.”
Now Let’s Look At The Truth
To make this easier since there are so many lies, deceptions, omissions and half-truths in those three paragraphs, I’ll list them in bullet format:
1. The first, perhaps most egregious lie is a lie of omission. What Cruz didn’t say above, nor has he addressed anywhere else when he pulls out this canned answer, is that the 1790 Act was REPEALED in its entirety just 5 years later when the Naturalization Act of 1795 replaced the 1790 Act (See below for link to both Acts side-by-side).
Among the changes was the small – but highly-significant – deletion of the phrase ‘natural born’ in front of the word ‘citizens’. In the 1795 Act, that same sentence reads ‘shall be considered as citizens’. Hmmm…that’s odd. And by the way, it has been that way for the past 221 years.
So, as a foundational issue, you’d think a guy hanging his hat on a 1790 law in order to be president would realize that the law he’s quoting, and the very words he’s referring to, haven’t appeared in the law in more than two centuries!
Try going to court and telling the judge that the reason you were driving 45 mph in the 25 mph school zone is the speed limit ‘used to be’ 45 mph. After the judge stops laughing, he’ll fine you $100 and kick you out of his court!
Also of significance is that the words ‘natural born’ were removed by the head of the committee charged with updating the law, which was headed by none other than the Father of the Constitution himself, James Madison. I’m kinda thinking he knew what he was doing, and deletion wasn’t a mere ‘oversight’, especially since the phrase hasn’t reappeared since.
The best information available is that the leaders of the day realized that the use of that phrase in that way was causing some to think it was meant to redefine the plain meaning of the term, so it was decided simply delete the words to avoid any confusion going forward.
2. From a legal and technical standpoint, it’s also clear that the Congress never intended to redefine the term because the members of Congress clearly knew it had no such authority, so it begs the question of why would they have tried to do that anyway?
If the First Congress literally believed that that group of people had somehow not been included in the common understanding of the term ‘natural born’, why would it have thought it could just retroactively ‘declare’ them included when it was fully aware that would be unconstitutional because it would on its face be an admission that Congress was attempting to change the founding document by means of statute?
3. If, on the other hand, Cruz and others want us to believe those children were meant to be deemed as ‘natural born’ from the start, then that begs the question of why did Congress say it at all? If something is already true, we don’t need an Act of Congress to tell us that.
And by the way, you’ll notice Congress has NEVER declared citizens born here to two citizen-parents to be natural born citizens. You can spend the rest of your days searching for a law in Congress that makes someone a natural born citizen and you won’t find it, even though we know that class of citizens exists. We know it exists because that class of citizen was specifically identified in Article II, Section 5, Clause 1 of the Constitution when the Framers said,
“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; 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.”
The use of the word ‘or’ separating the two types of citizenship makes it clear that there is a type of citizenship available to U.S. citizens that is separate and apart from ‘mere’ citizenship, and one that does not require an Act of Congress to obtain. If it did require a law to obtain it, where is that law? In short, it simply comes ‘naturally’ as a result of being born in the U.S. to two citizen-parents, and serves as further concrete proof that Congress never meant to out-of-the-blue say an entire class of citizens is now to declared as natural born.
4. A close reading of the 1790 Act also reveals another important point that Cruz failed to mention…in the very next sentence after the one he’s clinging on to falsely declare himself ‘natural born’, the text also says this:
“Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”
What it means is that until 1934, when the law was changed again, a child who was born abroad to an American MOTHER and an alien father was not even a citizen at birth, let alone a natural born citizen! And of course, that’s the exact same birth circumstance that Cruz was born into – born in Canada to an American mother and an alien father.
5. Finally, Cruz also says, “I was a citizen by birth by virtue of my mother’s citizenship, so I’ve never been naturalized …” And while U.S. law does clearly provide still today that children born abroad to U.S. citizens are ‘citizens at birth’, NOWHERE does it say those children are ‘natural born Citizens’, as Cruz claimed in his opening paragraph to Julie. Additionally, while Cruz says he’s not been ‘naturalized’, here’s what Supreme Court Justice Horace Gray said in United States v. Wong Kim Ark (1898):
“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 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.”
Contrary to popular opinion, when you obtain your citizenship by virtue of the U.S. laws of Naturalization, which is the only way Cruz could have, then the Court has consistently said that people in that situation are indeed ‘naturalized citizens’ even though they don’t go through a formal “Ellis Island” type of process. Instead, they’re naturalized through the law that provides ‘Collective Naturalization’ to whole classes of citizens. (See link to related article below).
In fact, the very name of the law that Cruz is claiming makes him ‘natural born’ and not ‘naturalized’ is the ‘NATURALIZATION Act of 1790,’ for Heaven’s sake! It’s not the ‘Natural Born Act of 1790’!
Here’s how Supreme Court Justice Hugo Black, who 4 years earlier wrote the majority opinion in the citizenship case of Afroyim v. Rusk, said it in Rogers v Bellei (1971):
“Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word “naturalize” in this way has a considerable constitutional history. Congress is empowered by the Constitution to “establish a uniform Rule of Naturalization,” Art. I, Sec 8. Anyone acquiring citizenship solely under the exercise of this power is, Constitutionally speaking, A NATURALIZED CITIZEN.” (emphasis added)
Additionally, the Court has also made clear that ‘naturalized citizens’ are not eligible to be president. From 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. Art. II, § 1.”
So when you add up all of the changes, deletions and exceptions to the Act of 1790, and the impact of being a naturalized citizen, here’s what Cruz should have said in answer to Julie’s question above:
“Well, Julie, IF I was running for president in 1792 instead of 2016, AND IF I was born to an American father instead of an American mother, AND IF I could convince the courts that the 1790 Act actually did redefine the Constitutional meaning of the phrase ‘natural born citizen’ to now include children born abroad, AND absent that finding, IF the Court would change the current law to allow naturalized citizens to be president, then yes, absolutely I’d be eligible!”
The Diversionary Sleight of Hand
But instead of just fessing up the truth to Julie, he lied through his teeth the entire time of giving her the answer, up to and including throwing in all the sideshow stories about everything from soldiers and missionaries to George Romney and John McCain.
Without getting into all the specifics of each of those cases, suffice to say none of them applied to him anyway…children born abroad of soldiers are ‘citizens’ (not natural born citizens) if their parents meet certain criteria; Romney (Mitt’s dad) was NOT eligible since he was born in Mexico but dropped out of the Republican primary before his lack of eligibility became hotly contested; and McCain was also was not eligible because he too was born as a ‘citizen at birth’ – in fact by virtue of the same statute that makes Cruz a naturalized citizen – despite the Senate Resolution that declared him to be natural born.
And as you may recall, the main problem the McCain Senate Resolution was that it was largely based on…drum roll please…the Naturalization Act of 1790!
Then, to compound the ‘Big Lie’ even further, two Harvard-trained lawyers wrote the article in the Harvard Law Review that itself was based on BOTH the 1790 Act and the McCain Senate Resolution combined! Talk about a stroll through the mud…what on earth happened to that once-respected publication?
Something More Going on Around Here
Can the web of lies and deceit manage to get any thicker on this, and are you getting a sense of how we’re being rolled up one side and down the other?
While the ‘Big Lie’ is not new, Cruz is taking it to a whole new level, which is particularly disturbing for a self-declared ‘Constitutional expert’ that really should – and I would argue does – know better.
When you add it up, the logical question then becomes whether or not a bunch of really smart people just totally missed the plain facts I’ve spelled out above, or if there’s something else going on that is MUCH bigger than all of this.
I mean, it almost feels as if there’s some kind of grand scheme to destroy the U.S. by taking down our borders, erasing our national sovereignty, and installing some kind of ‘world leader’ in our Oval Office.
After all, why else would a guy running for president quote from a law that was repealed 221 years ago as if the law was still in place, and worse, why wouldn’t a single member of the media call him out about doing that?
I have my own answer about that, and something tells me that millions of other Americans do as well.
Naturalization Acts of 1790 and 1795: http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html
Attorney Mario Apuzzo: http://puzo1.blogspot.com
Minor v. Happersett: https://www.law.cornell.edu/supremecourt/text/88/162
Schneider v Rusk: https://www.law.cornell.edu/supremecourt/text/377/163
United States v. Wong Kim Ark: https://www.law.cornell.edu/supremecourt/text/169/649
Rogers v Bellei: https://supreme.justia.com/cases/federal/us/401/815/case.html
Tags: 1790 Naturalization Act, Afroyim v. Rusk, Article II Section 5 Clause 1, Congress, Harvard Law Review, John McCain's eligibility, Minor v. Happersett, national sovereignty, natural born citizen, naturalized citizens, right of citizenship, Schneider v. Rusk, Sen. Ted Cruz, U.S. Constitution, United States v. Wong Kim Ark