Topic category:  Constitution/Constitutional Crises

The Constitution does not explicitly prohibit persons who are not "natural born" citizens from running for President of the United States, but it does explicitly prohibit such persons from being President.

Ted Cruz should put aside personal ambition and be true to the Constitution and his judicial philosophy.

The judicial oath set forth in 8 U.S.C. Section 453 states:

"Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: 'I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God."

The issue of whether Cruz is eligible to be President should be restated in impersonal terms as follows: is a person born in Canada whose father is not a United States citizen and whose mother is a United States citizen eligible to be President?

The answer is no.

Judicial activists do whatever they want, but t's not a close question for Constitution originalists.

Congress has the power to naturalize under the Constitution, but it does not have the power to change the meaning of "natural born Citizen" under the Constitution.

"Natural born" is used in the Constitution is supposed to be understood as it was understood when the Constitution was drafted and adopted.

Such persons do not receive birthright citizenship under jus soli, because they were not born in the United States.

In addition, persons born outside the United States to United States mothers were not considered United States citizens at all, because mothers could not transmit citizenship to their children until 1934. Citizenship was transmittable only by fathers.

That may seem very unfair these days, but the Constitution is supposed to be changed in accordance with the amendment procedure set forth in the Constitution, not under the guise of judicial interpretation.

Cruz knows that.

But he's been running anyway.

Cruz probably would argue that if he elected by the Electoral College, the courts should invoke the political question doctrine to avoid addressing the issue.

That would be a clever strategy to be expected from a very able legal advocate, but it would be an attempt to circumvent the Constitution.

The federal statute on which Cruz relies did not amend the Constitution.

As a United States Senator, Cruz swore to uphold the Constitution, not to circumvent it.

Cruz said in the last debate among Republican presidential hopefuls that he would support Donald Trump if Trump becomes the Republican nominee, because he had promised to do so.

Cruz swore to uphold the Constitution, not the Constitution except for the personally inconvenient "natural born Citizen" clause, and Cruz should keep his word.

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.