Topic category:  Constitution/Constitutional Crises

Republican presidential aspirant Ted Cruz is fond of using a famous John Adams quotation.

In December 1770, in his "Argument in Defense of the Soldiers in the Boston Massacre Trials," Adams declared: "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence."

To be sure, Adams was right, and Cruz is smart to quote him.

Unfortunately for Cruz, when it comes to whether or not Cruz is constitutionally eligible to be President of the United States, the "facts" trump Cruz's wishes, inclinations and passion.

Cruz is not eligible because he is not a natural born United States citizen within the meaning of the United States Constitution as drafted and adopted and no constitutional amendment has changed that.

Cruz may not have ordered his staff to play a dirty trick on Ben Carson as the Iowa caucuses met, but as a brilliant student of the Constitution and advocate of originalism he knows that (1) the words "natural born" were deliberately inserted in the Constitution and therefore may not be ignored and (2) Congress alone cannot amend the Constitution.

The "stubborn facts" that Cruz cannot alter are that he was not born in the United States and therefore he is not a "natural born" United States citizen.

Cruz's mother's United States citizenship apparently made him a United States citizen from birth (because federal law was changed in the twentieth century to permit mothers as well as fathers to transmit United States citizenship).

See 8 U.S. Code Section 1401 provides in part "The following shall be nationals and citizens of the United States at birth:...:(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years..."

Nevertheless, Cruz is not a "natural born" United States citizen, although naturalized at birth, because he was born in Canada and therefore was a natural born Canadian citizen instead.

Black's Law Dictionary (1968) does not define "natural born citizen," but it does define "natural-born subject": "In English law, one born within the dominions, or rather the allegiance, of the king of England" (p. 1177).

Place of birth determines where a person is "natural born."

It did when the United States Constitution was drafted and adopted, and the Constitution has not been amended either to change the meaning of "natural born" or to eliminate the "natural born" requirement for presidents and vice presidents.

As explained in The Oxford Companion to the Supreme Court of the United States (1992), edited by Kermit L. Hall, "[t]he requirement that the president be a 'natural born" citizen implies that the framers recognized the principle of jus soli (p.24).

They did.

Under the jus soli doctrine, Latin for "right of land or ground," "citizenship results from birth within a national territory" (p. 24).

In the Dred Scott, the jus soli doctrine was applied. Nevertheless, Scott was held to be unable to "sue for his freedom in federal court since no one of African descent, freeman or slave, could be a citizen of the United States" (p. 24).

The Fourteenth Amendment was enacted to change the result, but not to reject the jus soli doctrine.

It provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

The Fourteenth Amendment eliminated any distinction between persons born and persons naturalized in the United States, recognized all of them as "citizens of the United States."

BUT...the Fourteenth Amendment did not delete the Constitution's "natural born" qualification for Presidents and Vice Presidents.

Article I, Section 8 of the Constitution empowers Congress "[t]o establish an Uniform Rule of Naturalization...."

Naturalization is "the process by which persons become citizens other than by birth" (p. 26).

In Boyd v. Nebraska, 143 U.S. 135, 162 (1892), the United States Supreme Court defined naturalization as "the act of adopting a foreigner, and clothing him with the privileges of a native citizen...."

Cruz is a naturalized United States citizen, not a "natural born" one.

Under the Immigration and Nationality Act of June 27, 1952, Cruz is treated as a citizen of the United States at birth.

But, not even a specific act of Congress can make him a "natural born" United States citizen.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.