by Ron Smith, ©2016

(Feb. 15, 2016) — There’s an old saying in the legal profession that when the facts are against you, argue the law, and when the law is against you, argue the facts.

And, when both the facts AND the law are against you, the only option left is to create a ‘red-herring,’ which is defined as ‘something intended to divert attention from the real problem or matter at hand; a misleading clue.’

In the current spat over the presidential eligibility requirements, the perfect ‘red-herring’ is the one phrase that the Founders gave us 229 years ago to prevent someone with ‘dual allegiance’ from ever occupying the Oval Office — and that phrase is ‘natural born Citizen.’

The most common method used to gloss over the definition of the phrase is to dismiss it as having ‘never been litigated’ in court. And while that’s technically true, I’d like to blow a hole in that line of thinking with a brief analogy using plants, water and fertilizer.

If I said, ‘Water makes plants grow faster,’ and then set up a simple experiment to prove that statement, we’d soon have actual scientific proof that the statement was accurate.

If I then said, ‘Fertilizer makes plants grow faster,’ and then set up another experiment to prove that statement, we’d see the same obvious results.

However, what Cruz, Rubio and their supporters want us to now believe is that if I said, ‘Water AND fertilizer make plants grow faster,’ they would say, ‘Well, that phrase has never been proven, so you can’t make that claim.’ And while technically correct, you can see the fallacy of the argument with the simple illustration above.

Based on the individual components being proven separately, we don’t need another experiment to prove that ‘water and fertilizer make plants grow faster.’

We don’t need another court to tell us what we already know…we just need candidates who are honest enough to listen.

In a Similar Way, We Don’t Need a Court To Define ‘Natural Born Citizen’

The core of the ‘natural born Citizen’ question in the case of both Cruz and Rubio can be boiled down to two essential ingredients:

Question 1: Did either Senator obtain their American citizenship by virtue of a law or statute created by man?

The answer to the first question for both men is YES. There is no dispute that their citizenship was obtained by function of law, specifically under the ‘Naturalization’ laws established by Congress.

And while neither man has been in court over the issue, the Supreme Court has ruled in more than one case that persons fitting their exact same birth circumstances had in fact obtained their citizenship due to U.S. law. There is therefore no reason to believe that Cruz and Rubio would have any different outcome in court since their birth circumstances fit the exact same fact pattern.

And to help with terminology going forward, here’s what Supreme Court Justice Hugo Black, who four years earlier wrote the majority opinion in the citizenship case of Afroyim v. Rusk, observed in Rogers v. Bellei (1971) regarding foreign-born children of US citizen parents:

“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 an uniform Rule of Naturalization,” Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.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 mine)

Also in United States V. Wong Kim Ark (1898), the Supreme Court said this:

“…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…”

Which leads to question 2: Among persons whose citizenship was obtained via naturalization, has the Supreme Court determined if such persons are eligible to be president (or vice-president)?

The answer is yes, the Court has answered that question, and the Court’s answer was NO!

Justice William O. Douglas in Schneider V. Rusk (1964) made it clear that ‘naturalized’ citizens are NOT eligible to be president when he wrote:

“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.”

And in Luria v. United States, 231 U.S. 9 (1913), the Supreme Court said:

“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency.”

So when we put these two legal truths together, we come to the unavoidable and ALREADY LITIGATED conclusion that both Senators Cruz and Rubio are by legal definition NATURALIZED citizens of the U.S., and as such, NEITHER IS ELIGIBLE to serve as president or vice-president of the United States.

In other words, we don’t need a court to define the term ‘natural born Citizen’ since the component parts of the phrase have already been litigated any more than we need another experiment to prove that ‘water AND fertilizer makes plants grow faster.’

Anybody who uses that excuse is just feeding you more ‘red-herring’ and is not dealing with the legal realities of this critical issue.

Worse, either unwittingly or intentionally, they are also working to undermine the very foundation of one of the cornerstones of our national security by ignoring the plain warning from our Founding Fathers that the president of the United States must be none other than a ‘natural born Citizen.’

For more information, here are two excellent articles that dive deeper into the issue:



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  1. Thank you for hitting the nail on the head. I would further argue that your evidence is in just how meaningless this clause of the Constitution and the process for amending the Constitution would be otherwise. Congress did grant Ted Cruz citizenship and they can call him “natural born” all they want, but Congress never did or could offer the ability to run for President contrary to the Constitution.

  2. These are facts. Lets read the Constitution. We come to ARTICLE 1 SECTION 8 CLAUSE 10. Congress shall have the power to define and punish….. Offences against the Law of Nations.
    We perhaps should read the Law of Nations, to know the power of Congress. Didn’t we just overthrow a tyrannical King? We better see what power our Congress has.
    OK having read the Law of Nations now back to the Constitution. We come to to ARTICLE 2 SECTION 1 CLAUSE 5. No person except a natural born citizen shall be eligible to the office of president.
    Didn’t we just read who was a natural born citizen was in the Law of Nations..Yes it was in Book 1 Chapter 19 article 212, ” born on the land with both parents as citizens of that nation”. Now we have a question. Why is obama in the White House and why are Cruz and Rubio in this presidential race? NONE are natural born citizens.
    Please note that the above facts fall in order. You know the first before you come to the second. You know the second before you come to the third.
    Isn’t our Constitution the supreme law of this nation?

  3. Clearly and plainly put – thank you!

    We must react strongly to this new attack on our Constitution. The Constitution is not being repudiated all at once, it’s being redefined by progressive, little by little. The natural born citizen requirement to serve at the Commander in Chief was inserted as an attempt to prevent dual loyalties. Why are these problematic? The Commander in Chief must be loyal to the United States and her alone. This is a national security safeguard.

  4. Spot on Melissa! I kid you not…mark my words…at some point down the road, we’ll be having a debate over whether or not the 2nd amendment actually means we have the right to wear short sleeve shirts, and nothing at all to do with guns! :)

  5. The argument that I am now reading on many conservative web sites is that Ted Cruz was a “citizen at birth” therefore, he is a natural born citizen. This new terminology has been cleverly inserted into the dialog, and those using the term are attempting to equate it with “natural born citizen”.

    The whole thing reminds me of how those trying to do away with the Second Amendment want to replace “The right of the PEOPLE to keep and bear arms…” with “The right of the MILITARY to keep and bear arms…” Change one or two words, and the entire meaning is lost. Now, according to those arguing in favor of Ted Cruz, it is no longer necessary to be a “natural born citizen”. You need only to be a “citizen at birth”. Same thing. Except it’s not.

    Because the rule of naturalization covers children of American citizens born abroad, anyone being a part of that group has automatic citizenship at birth. Of course, like the Justices have said, simply being NATURALIZED at birth does not make one a NATURAL BORN CITIZEN at birth. Sadly, however, that is the current argument.

    I’m not an intellectual, but the whole idea is clear to me. I don’t know if other people are feigning ignorance or if they REALLY can’t grasp the concept. A NATURALIZED citizen is NOT a natural BORN citizen.