The ‘Birther’ Attacks On Ted Cruz Appear To Be Having An Impact In Iowa

The attacks on Ted Cruz's eligibility to be President have no legal merit, but they appear to be having an impact with at least some Iowa voters.

Ted Cruz Speaking

I noted yesterday that Ted Cruz seems to have peaked in Iowa based on the polls that have been released since the campaign resumed from the holiday break at the beginning of the month. That fact was brought home again today with the release of Des Moines Register poll that showed that, while Cruz was still leading in the Hawkeye State his numbers had fallen six points in the month since the last DMR poll in early December. With that poll, Cruz’s lead in the RealClearPolitics poll average is now down to half a point over Donald Trump, who saw his number in the poll tick poll while Marco Rubio and Ben Carson both also gained some ground even though they remained far behind in third and fourth place respectively. As Bloomberg’s Joshua Green notes, at least part of the reason for this rapid change in Cruz’s fortune seems to be the fact the ‘birther’ attacks on Cruz that began shortly after the New Year when Trump began raising questions about the issue are working:

Donald Trump has been needling his main rival for the Republican presidential nomination, Ted Cruz, about his Canadian origins, suggesting this disqualifies him from the presidency. Many legal scholars disagree (though not all of them do). But the “birther” attack clearly bothers Cruz, and now he’s striking back.

“It is more than a little strange to see Donald relying on as authoritative a liberal, left-wing, judicial activist Harvard law professor who is a huge Hillary supporter,” he said in New Hampshire Tuesday, apparently referencing Harvard Law professor (and Democrat) Laurence Tribe. “It starts to make you think, ‘Gosh, why are some of Hillary’s strongest supporters backing Donald Trump?'”

Why has Cruz switched from lavishly praising Trump to attacking him? It may be because the birther charge is having an effect on the ground in Iowa.

In the latest Bloomberg Politics/Des Moines Register Iowa Poll of Republicans, which shows Cruz narrowly leading Trump, 15 percent of respondents say they are “bothered” that Cruz was born in Canada.

“Fifteen percent in Iowa, when you have this many candidates, if that’s part of what’s taking people to Trump, it’s not nothing,” said J. Ann Selzer of Selzer & Co., which conducted the poll of 500 likely Republican caucusgoers in Iowa between Jan. 7-10. It has a margin of error of plus or minus 4.4 percentage points.

Concerns over Cruz’s Canadian birthplace are especially strong among Trump supporters, 32 percent of whom report being bothered by it. “This is primarily the Trump-Cruz battleground [in Iowa],” says Selzer, “and the people it bothers are Trump people more than anybody else.”

Cruz’s support has fallen by 6 points since the last Bloomberg Politics/Des Moines Register poll a month ago, while Trump’s has risen by 1 point. But it’s impossible to measure whether Trump’s birther charge eroded Cruz’s support because respondents weren’t asked about it in the last poll—it wasn’t an issue until Trump made it one. “You can’t know for sure that it’s a factor,” says Selzer. “But you can’t rule it out either.”

At the very least, the question Trump has raised could make it harder for Cruz to lure away Trump’s supporters.

Since the birther question wasn’t asked in previous polling, it’s hard to say whether that is the reason, or even a significant reason behind Cruz’s decline in the polls, and it’s always important to remember not to fall into the “correlation equals causation” trap when examining news items and the impact they have on the polls like this. Nonetheless, the fact that Cruz’s decline in Iowa seems to have come on suddenly, when combined with the fact that this issue about the impact of his Canadian birth suggests that it might have had at least some impact on the Senator’s campaign. At the very least, this poll would seem to establish that the Senator’s eligibility to be President, which seems to me to be easily established under the relevant law, is something that at least fifteen percent of the Iowa Republican electorate has concerns about. While that’s hardly a majority, it’s also a fairly significant amount of the electorate in a race where the margins between the candidates have been, and will likely continue to be, quite close.

Given this it becomes easy to understand why candidates such as Rand Paul, Carly Fiorina, Mike Huckabee, and Rick Santorum have joined Trump in saying that Cruz’s Canadian birth raises questions that he needs to get resolved, and why other Republicans such as John McCain and Republican National Committee Chairman Reince Priebus, who are part of the Republican ‘establishment’ that Cruz has repeatedly attacked during his time in the Senate, are saying essentially the same thing. To be blunt about it, there is a perception that the ‘birther’ attack on Cruz is working, or at least that it is raising sufficient doubt in the minds of at least some Iowa voters to blunt his rise in the polls. Because of that, many of Cruz’s opponents have decided that it’s worthwhile to join in with Trump in his rather idiotic suggestion that nominating Cruz without first getting the question of his eligibility resolved in Court would cause problems for the party down the line. It’s idiotic, it’s somewhat distasteful, but it’s also politics, and candidates have a habit of seizing on arguments that appear to be working. Add into this the fact that Cruz has a reputation for not being entirely well-liked by his fellow Republicans, something demonstrated by the fact that nobody is jumping to his defense the way they did when similar questions were raised about John McCain’s eligibility during the 2008 campaign, and it’s easy to see what’s going on here. Ultimately, it will be up to the voters of Iowa to decide whether or not this is a real issue or not, but as long as the candidates think it’s impacting how the voters perceive Cruz they are going to continue bringing it up.

FILED UNDER: 2016 Election, Public Opinion Polls, US Politics, , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. James Pearce says:

    “Because of that, many of Cruz’s opponents have decided that it’s worthwhile to join in with Trump”

    You mean they’re saying, “Screw it, let’s just do what works?”

    They should do that more often, just in different contexts.

  2. grumpy realist says:

    snerk snerk snerk.

  3. Ron Beasley says:

    Cruz’s situation is a bit different. John McCain was born on a US military facility in the canal zone which at the time was a US territory. Barry Goldwater was born in the US Arizona territory. Cruz on the other hand was apparently a duel citizen until 2014 when he gave up his passport and Canadian citizenship.
    I’m not saying he’s not eligible but it may not be as simple as it looks. The fact that Cruz is disliked by nearly everyone doesn’t help.

  4. WR says:

    Do you think Iowa Republicans ever say “Okay, I think we’ve got everyone convinced we’re complete morons — we can stop acting stupid now”?

  5. Hal_10000 says:

    I don’t know if the birther stuff is having as much of an impact on Cruz as the fact that he’s Ted Cruz and the voters are realizing that.

  6. Bookdragon says:

    It may be dumb, but I can’t comety blame them for using anything available to keep Cruz from the nomination.

    You think gridlock is bad now? Imagine a pres who not only has trouble reaching across the aisle but can’t even reach within his own aisle.

  7. Argon says:

    All snark aside… Seriously?

  8. CSK says:


    He’s a cross between a televangelist and Bill Murray doing Nick the Lounge Lizard.


    You have to wonder about the arrogance (and brains) of someone who gets elected to the senate for the sole purpose of running for the presidency, and then goes out of his way to ensure that every Republican in the senate hates his guts.

  9. gVOR08 says:

    Laurence Tribe rang in and says it is unsettled. He says an originalist would apply the understanding of natural born citizen from the 1790s which requires he be born on American soil, while a living constitutionalist would find that by modern meanings Cruz is eligible.

    I believe what that means is that if push came to shove all the conservative strict constructionists on SCOTUS would abandon their principles and find their fellow Republican eligible. Unless they hate Cruz more than Hillary, which is entirely possible. It also means that if Cruz had a shred of intellectual honesty and integrity, he’d do the honorable thing and withdraw.

  10. jukeboxgrad says:

    we’ve got everyone convinced we’re complete morons

    A perfect introduction to this:

    there are more GOP voters in the state who think Cruz (34%) was born in the United States than think Barack Obama (28%) was

    And notice this:

    36% of Cruz voters aren’t aware yet that he wasn’t born in the United States, and 24% of Cruz voters say someone born outside the country shouldn’t be allowed to be President

    (I wish I knew why they said 34% in one sentence and 36% in the next sentence.) So the great thing about Trump’s strategy is that he doesn’t have to convince anyone that foreign birth makes you ineligible. A bunch of Cruz voters already believe that, but are unaware of Cruz’s foreign birth. Now they are getting educated, because everyone is talking about this.

    So the murky legal issues are kind of a sideshow. Trump wins every time anyone helps him communicate this simple and undisputed fact: ‘Cruz wasn’t born here.’ And of course most stories about this start by presenting that fact.

  11. Monala says:

    @Bookdragon: Makes me wonder how Trump would do. Would other Republicans follow his lead?

  12. Bookdragon says:

    @Monala: Only the ones with no ethics whatsoever…so, yeah, a lot would.

  13. Bookdragon says:
  14. Barry says:


    Let the Tea Party eat its own.

  15. DrDaveT says:


    I wish I knew why they said 34% in one sentence and 36% in the next sentence.

    “Cruz voters” vs. “GOP voters”. Not all GOP voters are Cruz voters (thank God).

  16. DrDaveT says:

    Please free my perfectly innocuous reply to jukeboxgrad from the spam filter…

  17. Pch101 says:

    A “birther” dreams up wacky conspiracy theories about the current president’s birthplace.

    Nobody, including Ted Cruz, disputes the fact that Ted Cruz was born in a foreign country. The fact that the country in question is often referred to (or dismissed) as the “51’st state” doesn’t change the fact that it’s a foreign country.

    If it was so obvious to the founders that someone born abroad was “natural born,” then why did the Congress feel compelled to pass a law in 1790 to define which persons who were abroad could be labeled as such? It should seem obvious that Congress felt that it had the power to define “natural born”, but that the language of the Constitution alone was not sufficient for including the foreign born in that definition.

  18. JKB says:

    @Ron Beasley:

    So you support the internment of American citizens of Japanese descent since Japan considered anyone of Japanese descent a subject of the Japanese Emperor at the time?

    Using the logic that a foreign government’s unilateral claim of subjection or conferment of a right to claim citizenship somehow interferes with American citizenship?

    Even historically, the child of an British sovereign was a British regardless of where in the world they were born. In America, the People are the sovereign and Cruz was born of an American citizen, specifically a female citizen but at a time when women in American had full political rights, even suffrage.

  19. Pch101 says:

    @Ron Beasley:

    Dual nationality does not prevent one from being “natural born.” The issue for Ted Cruz is his birthplace and its relevance to the definition of natural born, not whether he is a dual national.

    Re: Trump’s claim re: a second passport, no evidence of that has been provided.

    Furthermore, Canadian citizenship law has a more complicated history, and Cruz may have had good reason to believe that he was not a Canadian citizen. (Canada used to ban dual nationality and would automatically revoke Canadian citizenship from those who took on another citizenship.) Again, that doesn’t address the issue of “natural born”, but dual nationality is not only unimportant but he may have never had it.

  20. Rafer Janders says:

    Can’t. Stop. Laughing.

  21. Rafer Janders says:

    Can’t. Stop. Laughing.

  22. therealvision says:

    Its not stupid and the law is very clear- Cruz can’t be President- the People saying otherwise are complete idiots when it comes to the law

    Congress cannot amend the Constitution by statute- therefore, those people naturalized by law cannot be “natural born citizens” nor can “natural born citizen” be the same as “born citizen” because you render the term “natural” redundant, which in the law we don’t do. If the Founders had meant “born citizen” they would have just said so, they wouldn’t have added “natural” to the phrase

  23. Rafer Janders says:

    I don’t want to say the Birther attacks have any validity, but back when I was in school with Ted, he used to refer to Americans as “you people” and call New England “down south”…..

  24. Rafer Janders says:


    He says an originalist would apply the understanding of natural born citizen from the 1790s which requires he be born on American soil,

    I’m not at all sure that my former professor Larry Tribe is right about what an originalist would say. Common law of the 1790s was of course heavily based on British common law, and the practice and understanding at the British Empire at the time was that children born to British parents overseas were themselves British. (And how could it have been otherwise? It was not the intent of the English and Scottish ruling classes to disenfranchise their own children merely due to the fact of their parents having taken up colonial posts). There was no question at the time that a child born to a British mother in Crown possessions such as present day Canada, South Africa, the West Indies, India, etc., or in other far-flung trading or diplomatic postings, was a British subject and entirely eligible to stand for Parliament when they returned to Britain. Alexander Hamilton could have easily become Chancellor of the Exchequer as Secretary of the Treasury had history turned a different way.

  25. gVOR08 says:

    @Rafer Janders: I’m certainly not qualified to go into the details of British common law, common law v legislated, and what should be used to read the Constitution. I’m not sure Tribe wasn’t trolling a bit. And I’m pretty sure the Roberts Court would rule for Cruz if push came to shove. But apparently enough of a case can be made to keep the fun rolling for awhile.

  26. Pch101 says:

    @Rafer Janders:

    Under common law, British citizenship was jus soli, but the soil included the whole of the dominion and British ships.

    Those who were born outside of British territory were generally not British citizens. Jus sanguinis came later from statute, not from common law.

  27. Rafer Janders says:

    The Manitoban Candidate.

  28. Rafer Janders says:


    Those who were born outside of British territory were generally not British citizens.

    They were, though. Children born to British parents who were stationed abroad in areas of British influence that were nevertheless not technically British territory (for example the nominally independent Indian princely states, Portuguese sherry estates run by the British, the trading posts in China and the East Indies that had certain extra-territorial privileges but were not under direct British control such as Shanghai, et.), were still British subjects (subjects, not citizens, because at the time there was no such republican concept as “citizenship”, rather one was a subject of the Crown).

    More up to date, I personally know multiple British friends who were born overseas to British parents in the 1930s-1960s in areas that were at those various times not under direct rule of the Crown (South Africa, Rhodesia, India, Kenya, Egypt, etc.) and now live in the UK as full British subjects, without ever having to go through some sort of naturalization ceremony. They were considered full subjects at birth.

  29. Rafer Janders says:

    I don’t want to say the Birther attacks on Ted Cruz have any validity, but back when we were in school and he’d order ham and eggs at breakfast, he always made sure to specify that it be Canadian ham….

  30. grumpy realist says:

    @gVOR08: The funniest part of all of this is what if you’re an originalist (as Cruz claims he is), he has to disqualify himself. While if he follows a more modern branch of Constitutional interpretation, then no problem.

    Showing that Cruz has as much integrity as all the other individuals loudly proclaiming their purity of constitutional interpretation, i.e, not that much.

  31. Pete S says:

    It is hard to figure out exactly where I stand on this. On one hand, it sure couldn’t happen to a nicer guy or a nicer party. They have been stirring this pot for 8 years. On the other hand it is pretty sad to see this nonsense working on the voters. I guess they don’t realize they have been getting played for years.

    And on a side note, as a Canadian it seems that 150 years of building a reputation as a polite genial people is down the tubes if Ted Cruz becomes associated with us in people’s minds.

  32. grumpy realist says:

    @Rafer Janders: Yes, but that’s the more MODERN interpretation. You have to go back and look at what the British Empire was doing back in 1776, no? And since back then under Common Law nationality only flowed through patrilineal descent, Cruz is out of luck….

    (I just love watching the arrogant SOB twist and turn in the wind. Which I think is the attitude of a lot of people.)

  33. Pch101 says:

    @Rafer Janders:

    Jus sanguinis in Britain comes from statute. It exists but it does not come from common law.

    If the argument is that the US should derive its interpretation of natural born from common law, then “natural born” = jus soli only. “Naturalization” = citizenship by statute, not common law.

    Ted Cruz is a US citizen because US federal statutes allowed him to acquire citizenship from his mother. Those laws could be changed if Congress wants to change them.

    Ted Cruz does not have a constitutional right to citizenship as does someone who is born on US soil, and the Supreme Court has ruled that jus sanguinis citizenship can be revoked. Citizenship obtained from jus soli cannot be revoked. There is a difference.

  34. Pch101 says:

    @grumpy realist:

    By 1776, Britain had begun passing laws to expand the definition of British subject. Which is to say that by the time of the US’ founding, Britain herself was moving away from a mere common law interpretation of citizenship because it was inadequate for its needs. Jus sanguinis didn’t exist until they passed laws to create it, and its specifics have been since redefined many times over.

    There is this erroneous presumption on this side of the pond that everything that the UK did was a matter of common law. The Brits don’t have any such illusions:

  35. gVOR08 says:

    In principle, the bottom line here is that if this reached the Supremes, they would probably find for Cruz 9-0. The liberals would take into account the evolution of the definition of citizenship beyond British common law. The conservatives, as they did with W, would apply that most sacred of conservative, strict constructionist, principles, IOKIYAR.

  36. sam says:


    Even historically, the child of an British sovereign was a British [citizen] regardless of where in the world they were born.

    There’s some confusion here. Citizenship per se is not at issue.

    See, Washington Post, Ted Cruz Is not Eligible to Be President:

    The concept of “natural born” comes from common law, and it is that law the Supreme Court has said we must turn to for the concept’s definition. On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are “such as are born within the dominions of the crown of England,” while aliens are “such as are born out of it.”

    The argument is that, while Cruz is certainly an American citizen, he is not a natural-born American citizen (where ‘natural born’=’born within the United States’).

    I don’t really care, thinking that Tail-Gunner Ted will be done in by hisownself, but it is amusing to me to note that Der Donald is now playing “Born in the USA” at his rallies.

  37. Tillman says:

    In the latest Bloomberg Politics/Des Moines Register Iowa Poll of Republicans, which shows Cruz narrowly leading Trump, 15 percent of respondents say they are “bothered” that Cruz was born in Canada.

    Oh, okay. That’s not nearly enough to have fascism concerns for. Even the numbers jukebox cited aren’t, er, exciting enough for worry.

  38. CSK says:

    Well, Trump has a new line of attack again now; Cruz apparently forgot to disclose a loan he got from Goldman-Sachs in 2012. Though that may not have the gut appeal of: “He’s a danged furriner!”

  39. C. Clavin says:

    These all seem to call into question Doug’s position:
    As the last link says (written by a former Scalia clerk):

    “…It’s a mystery to me why any one thinks it’s an easy question…”

    At the end of the day…his place of birth doesn’t matter…he’s not qualified for the job in any manner.

  40. Franklin says:

    Yeah, I read that Washington Post opinion the other day. I was surprised to find that it is not nearly as clear cut as some would have you believe.

    Geez, and I feel so sorry for poor Ted and his followers over these attacks … ’tis a pity. I’m sure none of them (for example, Ted’s own father) questioned Obama’s eligibility.

  41. C. Clavin says:

    And the loan was to fund his campaign.

  42. Scott says:

    @CSK: The Goldman-Sachs connection is diametrically opposite to his anti-Establishment persona he’s trying to create. I think Goldman-Sachs is an issue that he can be beaten over the head with.

  43. grumpy realist says:

    @Scott: Especially since he ran on an anti-Wall Street platform.

    If for nothing else than Cruz’s smarmy mug, I hope Trump beats him over the head with this like a red-haired stepchild.

  44. C. Clavin says:

    @grumpy realist:
    Why are you picking on red-heads?
    And yesterday was kiss-a-ginger day!!!

  45. jukeboxgrad says:


    Please free my perfectly innocuous reply to jukeboxgrad from the spam filter

    My crystal ball says you’re using the Reply feature to reply to me. Don’t do that. For some bizarre reason, the result is what you experienced. It’s been this way for years.

  46. KM says:

    @Pete S:

    And on a side note, as a Canadian it seems that 150 years of building a reputation as a polite genial people is down the tubes if Ted Cruz becomes associated with us in people’s minds.

    Don’t worry – Tim Hortons forgives a ton of sins. We let the Bieber thing go, didn’t we?

  47. jukeboxgrad says:


    The Goldman-Sachs connection is diametrically opposite to his anti-Establishment persona he’s trying to create.

    Yes, exactly. And this suggests that his original failure to disclose was deliberate, not inadvertent. It was better for him to disclose later rather than sooner. As Jennifer Rubin just said:

    Cruz’s campaign is built on the populist, anti-establishment narrative. That is how he won his Senate race in the first place and why it was a good reason for him to conceal the loan at a critical time in that race.

    She lists a bunch of reasons why this is going to hurt him.

    And this is similar to the birther thing. The real harm to Cruz is not just the story about the loan. The story about the loan embodies a basic fact that he would prefer his fans to not know: that he married into Goldman Sachs. His Goldman Sachs connection is much deeper than some loan. It’s marriage.

    I’m sure many Cruz fans are just finding this out now, just like they are just finding out now that he wasn’t born here. These two indisputable facts don’t help him, and suddenly both these facts are getting talked about a lot.

  48. grumpy realist says:

    @C. Clavin: Here’s some info about where the term comes from.

    Turns out it’s an Americanism, dating from 1910 or earlier. Possibly derived with the influx of Irish immigrants. Has only become popular (again) recently. Used as a replacement for “beat X like a rented mule.”

    (Huh–I always thought it a Britishism associated with some folk story. What you learn from Google…)

  49. Monala says:

    @Rafer Janders: You are having too much fun with this!

  50. Franklin says:

    @graduate of jukeboxes: If you want to do any experiments, like adding “uate” to your name, I could see if I get through the filter?

  51. jukeboxgrad says:


    I could see if I get through the filter?

    How to do that is no mystery, and requires no experiments. Just reply to me without using the Reply feature.

    If you want to see what that looks like, just look at any of my comments in this thread, including this one.

    Or you could do what you just did, which is alter the text that the Reply feature places in the comment box.

  52. Kylopod says:

    The natural-born clause is a stupid rule to begin with, and frankly, I don’t think that anyone truly cares about it. The Obama-birthers never did; it was all about race and partisanship, nothing else. It was a way of saying “He’s blaaaaack!” without using those words. And the same is true with Trump’s attacks on Cruz: he’s trying to remind right-wingers that Cruz is Latino and to arouse nativist suspicions of his Cuban family roots–period. And the crazy thing is, it may just work.

  53. gVOR08 says:

    @Kylopod: Part of what makes the Goldman-Sachs thing work is that it makes Cruz out to be an East Coast elitist pretending to be a populist. But nobody seems to be able to turn that sort of thing back on Trump, who is totally an East Coast elitist pretending to be a populist.

  54. Franklin says:

    @jukebg: OK, then maybe my suggestion should just be “why don’t you change your name slightly?” And then new people won’t have to learn how to reply to you.

  55. KM says:


    Trump, who is totally an East Coast elitist pretending to be a populist.

    But his asshattery is genuine, down to the bone. Seriously, he could probably do 180s on things at random but as long as he talks like one of them, he’s good. It’s the angry tone, the in-your-face I-do-what-I-want that attracts his cultists. They thinks they he’s a human Honey Badger and in true fashion Honey Badger Don’t Care. It’s merely a bonus that his current nuttery matches theirs; they worshipped him back when he as a Muslim-loving, Hillary-picture-taking Yankee Wall Street insider. He’s walking wish fulfillment to A-hole America.

  56. C. Clavin says:

    Campaign finance disclosures are meant to inform voters about special interests.
    That’s not to say there anything at all wrong with the loan itself.
    But when Cruz rails against Goldman…when he in fact borrowed $1M from them…then that firmly establishes him as a typical Republican hypocrite.

    “Goldman is one of the biggest banks on Wall Street, and my criticism with Washington is they engage in crony capitalism. They give favors to Wall Street and big business and that’s why I’ve been an outspoken opponent of crony capitalism, taking on leaders in both parties…Like many other players on Wall Street and big business, they seek out and get special favors from government…I think they’re entitled to practice their business, but without subsidies or special benefits…”

    Given the absolute lack of accountability in Republican politics…this is much ado about nothing. If hypocrisy was disqualifying there wouldn’t be a GOP.

  57. jukeboxgrad says:

    Frankin, I’ve been using this name for over ten years, posting many thousands of comments in many different places, mostly not here. Having a consistent, searchable identity means something.

    This site has a weird bug regarding my name. If I created a new name, it might suddenly have a weird bug regarding my new name. It’s entirely possible that this site has a problem with other names, and you’re just not aware of it. Changing my name is not the correct solution to this problem. It would be a case of the tail wagging the dog.

  58. grumpy realist says:

    @Kylopod: Um….there seem to be quite a few commentators over at American Thinker (I know, I know, a wretched hive of scum and villainy) who really really hate the fact that Cruz was born in Canada and how this makes him totally ineligible, especially because of the dual citizenship stuff….

    Oh, and the Cruzites and the Trumpers are both hurling accusations of RINOism and the other posters being trolls from the DNC. It’s like watching a bunch of 6 year olds call each other poopyheads.

  59. C. Clavin says:

    @grumpy realist:
    American Thinker: Holy shit…troll central.

  60. HarvardLaw92 says:


    where ‘natural born’=’born within the United States

    Except it does not mean that. People have been expending a silly amount of effort armchair lawyering this one to death lately.

    Natural born equates to “citizen by virtue of birth”, whether that ensues from location or blood. The constitution grants Congress the sole power to establish what conditions establish citizenship. They have done so. Until such time as they may reverse themselves, citizen status acquired by virtue of birth, whether based on jus soli or jus sanguinus, is “natural born”. The contra to “natural born” is citizenship acquired by virtue of naturalization after birth.

    Truthfully, it’s a silly argument to be having, especially with regard to someone like Sociopathic Ted. As if his eligibility for the office is even remotely the thing that will prevent him from obtaining it. He’s Ted fricking Cruz. That will do more to keep him out of the White House than any number of angels and pin head arguments about citizenship.

  61. grumpy realist says:

    Totally OT, but I was too busy laughing over this story to care.

    That’s all I need, a support animal that flaps its wings and is too dumb to get out of the rain…

  62. HarvardLaw92 says:


    the Supreme Court has ruled that jus sanguinis citizenship can be revoked.

    I assume you are referring to Rogers v. Bellei, 401 U.S. 815 (1971). In that context, read Vance v. Terrazas, 444 U.S. 252 (1980). Citizenship can not be revoked without the establishment of clear intent on the part of the citizen to relinquish it, which renders such a revocation virtually impossible to accomplish. Afroyim v. Rusk, 387 U.S. 253 (1967), remains the authoritative opinion on this subject.

  63. grumpy realist says:


    The only good thing coming out of this is I predict a whole slew of snark from the Internet.

  64. Pch101 says:


    At the time of Rogers, statute permitted citizenship to be revoked for someone who did not derive his citizenship from the 14th amendment. That law is no longer on the books, but the point remains that citizenship that is not derived from the 14th amendment is not a right.

    Afroyim was naturalized in the US, so he was protected by the 14th amendment — it is a different matter. Bellei was not, so he wasn’t, and Rogers was a later case.

    “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.” Bellei was neither born nor naturalized in the US, hence the case.

    Since the founding of the country, Congress has decided which foreign born persons can have citizenship and which ones can’t. These rules have changed fairly often over the last 200+ years, and the idea that having an American parent is enough to guarantee automatic citizenship is a falsehood — there have often been strings attached.

    The idea certainly doesn’t come from common law, either. It’s odd to see Americans debate this when the Brits themselves know that it isn’t true.

  65. Blue Galangal says:

    @KM: And Nanaimo bars. Don’t forget Nanaimo bars.

  66. bookdragon says:

    My favorite summary of this Trump vs Cruz spectacle comes from Josh Marshall at TPM:

    Like two zen masters facing off in a martial arts classic or perhaps two wizards do battle in The Lord of the Rings, we have an epic confrontation between two master who have trained for decades in the arts of assholery and bullying. But their powers equally matched, it is a stand off.

  67. grumpy realist says:
  68. Tom M says:

    Totally off topic, but what happened to Michael Reynolds?
    Did he flounce?

    I liked his comments and POV…
    If he’s gone for good, that’s a shame, I think.

  69. Neil Hudelson says:

    @Tom M:

    Long story. Abbreviated and polite version: He got a bit emotional after San Bernardino and suggested that America and the political left needed to take a course of action that most of us believed was irresponsible and a bit nonsensical.

    After a few days of arguing, when it was clear the majority of the commentariat was not on his side, he took an leave of absence from commenting.

    Probably for the best–his comments were getting very heated, and responses (including mine) were getting childish. All tempers needed to cool.

    Hopefully he comes back soon.

  70. JohnMcC says:

    Surprised to not find here some reference to the list of Canadians who were eligible to vote in Calgary during the early ’70s that included Eleanor Cruz, the Senator’s mother. It also seems like someone would have mentioned the peculiar delay in becoming a naturalized citizen of Raphael Cruz, the Senator’s father, who returned to Texas in the mid-70s but wasn’t an American until 2005.

  71. James -P says:

    You people are terrified of Cruz. Good to know.

    Cruz is going to crush you people into the ground.

    Cruz’ conservative message is resonating LOUD and CLEAR and no amount of ancillary distractions and white noise is going to confuse or dissuade conservatives from flocking to the polls en masse to elect Cruz as our 44th president — not a typo GWB was #43 and the office has been vacant for the previous seven years.

    Hopefully he will criminally prosecute the imposter Soetoro.

  72. Monala says:

    @grumpy realist: This one is far less amusing. This one is a challenges to the 14th amendment.

  73. J-Dub says:

    @Neil Hudelson: I saw him sitting in the crowd at a Trump rally.

  74. Pch101 says:


    Ted Cruz’s mother’s Canadian citizenship or lack thereof has no bearing on the natural born issue. She is a US citizen because she was born in the United States, and that cannot be taken away from her unless she chooses to renounce it.

  75. grumpy realist says:

    @Monala: Yah, that’s why I labeled it a “birfer” case, not a “birther” case.

    Although I do note that that most of the anti-Cruz birther arguments have been generated for the pure clear joy of Schadenfreude and yanking Cruz’s chain. Laurence Tribe seems to have been set of by Cruz’s hypocrisy and pious self-servingness–but it’s amazing the number of people who know Cruz and speak of him as a distinctly unpleasant bastard.

    Which makes me wonder how Cruz imagines he’s going to be able to handle any form of negotiation. Arguing in front of SCOTUS is one thing. Negotiating with the Chinese and the Russians is an entirely different kettle of piscene inhabitants.

  76. Rafer Janders says:

    I don’t want to give these Birther attacks any credibility, but when I was in school with Ted, he used to call a hamburger patty a meat puck…..

  77. CSK says:

    @Rafer Janders:


    (I hope that joke is not too obscure.)

  78. Surreal American says:

    @James -P:

    Wow, it must really suck for you each time you come down from your meth high.

  79. Monala says:

    Apparently Cruz had a pretty good comeback to Trump’s birther attacks in tonight’s debate.

  80. rachel says:

    @James -P: Bwaaaaaaah! Good one!

  81. Rafer Janders says:


    Think hockey.

  82. HarvardLaw92 says:


    Understood, but you’re missing the point. Until and unless SCOTUS changes its mind on this subject, simply having satisfied whatever statutory conditions Congress may establish for the revocation of citizenship is not sufficient to enable such a revocation. Doing that also requires the independent establishment of clear intent on the part of the citizen to relinquish. Having met the statutory conditions laid down for initiating revocation does NOT serve to demonstrate such an intent.

    Say for example Congress passes a hypothetical law which mandates that voting in a foreign election is cause for revocation. That someone did so, in and of itself, does not meet the Terrazas standard. The government would also have to establish, independent of the act which triggered proceedings, that this person willfully intended to relinquish citizenship when he/she voted. It’s virtually impossible to do so.

    The fact remains this – short of walking into a consulate and directly stating that one wishes to relinquish citizenship, once you’re a citizen (whether you were born one or naturalized as one is immaterial in this scenario) you remain one, regardless of whatever statutes Congress may pass to the contrary.

  83. C. Clavin says:

    Neil Cavuto thinks the Bush Contraction happened on Obsmas watch:

    “Investors have already lost $1.6 trillion in market value. That makes it the worst start to a new year ever. Many worry things will get even worse, banks and financial stocks are particularly vulnerable,” Cavuto said. “If this escalates like it did back when Barack Obama first assumed the presidency, what actions would you take, if the same thing happens all over again just as in this example you are taking over the presidency?”

  84. CSK says:

    @Rafer Janders:

    Oh, I got the joke about the meat puck.

    I was hoping my “Eh?” response was not too obscure.

  85. Moosebreath says:


    You hoser!

  86. Pch101 says:


    That had nothing to do with my point.

    Ted Cruz’s citizenship is not derived from the Constitution, but from statute.

    If Congress wanted to pass a law that changed or eliminated the chance for persons born abroad to claim citizenship based upon a parent’s American citizenship, it could.

    There is nothing in the Constitution that defines “native born.”

    There is currently no statute that defines what is “native born.” Furthermore, the Congress made a point of including some of the foreign born in its 1790 nationality law, which would suggest that the Congress knew that the Constitution was either unclear or else excluded them.

    Relying upon common law to define “native born” points to native born = jus soli, as Britain did not have jus sanguinis citizenship as part of its common law. (It did have it by the 18th century, but due to acts of Parliament, not from common law.)

    While an argument can be made that “native born” = born with citizenship, irrespective of the mechanism that was used to provide it, it is not as clear as you would have us believe. You can’t point to a case or a law to support it because there isn’t one, while relying upon the common law would lead us to the opposite conclusion. (I’ve posted above a summary of British citizenship legal history provided by the UK government if you have any doubt.)

    Ted Cruz’s citizenship meets the definition of “naturalization” — it comes from statute, and Congress opted to make the naturalization process easier for him and others like him than it did for those who didn’t have an American parent.

    For Bellei, even that wasn’t enough because he was not naturalized in the US and the law of the time allowed that revocation. Your references to Vance and Afroyim do not contradict that point because their citizenship was protected by the 14th amendment, while Bellei’s was not.

  87. HarvardLaw92 says:


    Of course Congress COULD pass such a statute. It could also pass a statute making it illegal to adjust one’s radio while passing on the right on alternate Tuesdays when the moon is full. It’s highly unlikely, if not entirely unlikely, to do either of those. You’re arguing about angels and the heads of pins to no practical purpose.

    You can’t point to a case or a law to support it because there isn’t one

    See, that’s where you’re wrong. I can. Never use words like “can’t” in response to an attorney who has an army of interns at his disposal for research. The Naturalization Act of 1790 specifically uses the term “natural born citizens” to refer to the children of US citizens who were born abroad. Quoting:

    “And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the the United States, shall be considered as natural born citizens”

    Given that the people voting on that act were pretty much the same people who articulated the Constitution itself, I think we can be fairly certain that they intended for “natural born” to refer to “citizen by virtue of birth, rather than citizen by virtue of naturalization”.

    So we have a situation where the founders themselves enacted a law, just three years after writing a constitution which utilized the term as a qualification for the US presidency, defining persons born extraterritorial to the US as “natural born citizens”. They can’t have been ignorant of the implications of using that specific term in defining citizenship. After all, they imposed the condition of being “natural born” in the first place.

  88. HarvardLaw92 says:


    Ted Cruz’s citizenship meets the definition of “naturalization” — it comes from statute,

    See above. Per the founders, Ted Cruz’s citizenship meets the definition of “natural born”. While I detest the man, you’re wildly off base here.

  89. Pch101 says:

    Per the founders, Ted Cruz’s citizenship meets the definition of “natural born”.

    The founders not only didn’t include the definition of “native born” in the Constitution, but they also made a point of defining it by statute, only to remove it later.

    “Natural born” is something that can be defined by Congress, but Congress has opted not to define it at the present time. With no case law to define it and no case pending, that leave us with the common law, which goes against him.

    As I’ve noted elsewhere, an addition to the current nationalization law is all that it would take — that’s what was done in 1790. I would have no problem if Congress did that today, even though I can’t stand Cruz — in fact, I would argue that they should, as I personally don’t think that this should be the reason for keeping him out of the White House.

  90. CSK says:


    At least I’m not a puck bunny, you dart. 😀

  91. Pch101 says:


    I keep using “native born” when I intend to use “natural born.” That’s what I get for multitasking, my apologies.

  92. JohnMcC says:

    @Pch101: As we say on channel 16, ‘Copy that’. But the schadenfreunde or irony or unmasking of hypocrisy or whatever it is that makes this such a great story just grow and grow. You can feel the joy with with (for example) Josh Marshall over at TPM suddenly finds there’s some actual meat to the ‘controversy’. And you can read the RWNJ side of the internets and not find anyone who thinks its funny.

    Which is just hilarious!

  93. PJ says:


    The Naturalization Act of 1790 specifically uses the term “natural born citizens” to refer to the children of US citizens who were born abroad. Quoting:

    How about we quote some more:

    Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

  94. JohnMcC says:

    @Pch101: IANAL, ok? But I notice that this comment uses the phrase ‘native-born’ apparently as a synonym for ‘natural-born’ which is the formulation in the Constitution. I read somewhere this morining (?washington monthly?) that there is some small but significant distinction. It seemed to subtle and full of legalisms for me to deal with at that moment. But I would appreciate a brief explanation about why the two phrases either do or do not mean the same in this context.

    Edit: Just noticed your noticing of the mixing of the two phrases. Well played, sir! Would still appreciate anyone’s thoughts on the distinctions if any between them.

  95. JohnMcC says:

    @JohnMcC: Huh! Can’t ‘edit’ for some reason.

    Just noticed psy101’s comment which notices the mixing of the phrases ‘native-born’ and ‘natural-born’. Well played, sir!

    Still would appreciate some explanation for the distinction if any between the two of them. Here in Florida we understand ‘native-born’ — it means you were born in Florida and are probably resentful of the majority who live here now. Natural-born probably means you weren’t born by C-section. But why would Madison and Jefferson care about that?

  96. Pch101 says:


    Yep. And it should be noted that Article 1 Section 8 gives Congress the power to “establish an uniform Rule of Naturalization.”

    That “uniform Rule” is not set in stone. As the history of naturalization law in the US makes clear, Congress is well aware of its power to change who is included in and who is excluded from the naturalization process, including its authority to define (or not define) “natural born.”

    That definition can be changed from time to time. Congress can also remain silent on the matter, as it does currently.

  97. Pch101 says:


    It was just a typo, as I noted above.

  98. grumpy realist says:

    We got nuts on our side as well.

    Cruz is going to learn the hard way not to be an arrogant SOB.

  99. PJ says:

    Has anyone actually seen any proof that Ted Cruz’s father actually is Rafael Cruz?
    Is there a paternity test?

    Ted Cruz’s mother could have had an affair with a Canadian.
    And then there is that pesky rumor that Ted Cruz’s father actually is Fidel Castro.

    Show us the long form paternity test!

  100. gVOR08 says:

    @PJ: Many years ago Formula One auto racing rules required that a wing be attached to the “chassis” of the car, as wheel hub mounted wings are better, but had shown a tendency to break. Lotus built a car with a conventional chassis containing the engine, driver, fuel, etc., and a surrounding light frame connected to the wheel hubs to which they attached the wing. They called it a second chassis, pointing out that it is ambiguous in English, and apparently in the original French, whether chassis is singular or plural. (The ruling went against them.)

    the children of citizens of the United States that may be born beyond Sea

    could mean the two parents of any given child, meaning both had to be citizens; or it could mean the parents plural of plural children, meaning either parent of a given child. The sentence you highlight requires the father to have resided in the US, which I believe Cruz’ father did, albeit not as a citizen. That sentence implies that maybe they didn’t really count the mother’s citizenship at all. I thought lawyers were supposed to write clearer than that. But I guess even in 1790 loose language guaranteed full employment for lawyers, even 200+ years later.

  101. PJ says:

    Do not try to fool me!!!!!!!!

    Have you actually seen proof that Rafael Cruz is Ted Cruz’s father?
    I haven’t!!!!!!
    Has Ted Cruz released a paternity test?
    No he hasn’t!!!!!!

    What is Ted Cruz hiding????!!!!????!!!!????

    (Such fun this is.)

  102. gVOR08 says:

    @PJ: Ain’t it the truth. And I’m glad to see the pros are on the case.

  103. JohnMcC says:

    @Pch101: If I am seeming pedantic about this it is just my character to do that — and I’m not at all bothered if you don’t think the question significant. Probably it’s not. But it got my curiosity roused because it seems to offer some sort of key to the YUUUUGE question of whether Sen Cruz meets the ‘natural-born’ standard.

    If the framers, Madison I suppose, could have chosen to use the phrase ‘native-born’ AS WE UNDERSTAND IT but chose instead a more neutral, less restrictive ‘natural-born’ it would incline toward Sen Cruz’s side.

    Understood that trying to read the mind of Hon Js Madison is crazytalk. But like I said, just roused my curiosity. And for a minute there it looked like you’d thought it over, so I asked.

    And I can’t believe that I’m spending part of my day thinking about this sh*t.

  104. PJ says:


    Ain’t it the truth. And I’m glad to see the pros are on the case.

    I wonder what Ted Cruz, Marco Rubio, Bobby Jindal, and Barack Obama all have in common.
    Can’t be very much, it is probably just skin deep.

  105. Kylopod says:

    @gVOR08: I’m actually familiar enough with the birther movement that I’ve known for a long time that the people who led the lawsuits against Obama have been dauntingly consistent in their extremism. The first lawsuit in 2008 was by Philip Berg, who claimed that both Obama and McCain were ineligible to be president. Taitz and other birthers have been attacking Cruz and even Rubio for years.

    In contrast, most of the casual Obama-birthers (such as Rep. Steve King, who recently endorsed Ted Cruz for president) have been flamingly hypocritical. The natural-born clause matters to them except when it doesn’t.

    I’m reminded a little of the fundamentalist campaign against the Harry Potter series. The question was always posed to them, if fiction books about magic are verboten, what about JRR Tolkien and CS Lewis, both devout Christians? Some of these people came up with convoluted explanations for why those earlier works were kosher while Harry Potter wasn’t. (One argument I remember was that Lewis and Tolkien only had magical characters in supporting roles, not as protagonists.) But one webpage I came across concluded, with impeccable consistency, that not only the Potter books needed to be thrown in the dustbin, but regrettably also Lewis and Tolkien.

    In both these examples, though, the people are basically starting with their preferred claims and working backwards from there. Birtherism, as a modern movement, fundamentally began as an attack on Obama. It evolved from the “Obama is a Muslim” meme (initiated in 2004 by an obscure perennial candidate named Andy Martin who ran for the Senate seat Obama ended up winning), which sprouted into a variety of conspiracy theories all revolving around the theme that Obama was alien and un-American. Those who became very devoted to these theories went on to question other people’s eligibility (McCain, Cruz, Rubio, etc.), but it wasn’t the source of their obsession in the first place.

  106. Monala says:

    @PJ: As Cruz himself pointed out, by Taitz’s definition, Trump is ineligible as well (immigrant mom).

    But WTH does immigrant Taitz think she can make judgments about this in the first place?!

  107. Rafer Janders says:


    Ted Cruz’s citizenship meets the definition of “naturalization” — it comes from statute, and Congress opted to make the naturalization process easier for him and others like him than it did for those who didn’t have an American parent.

    Ted Cruz was never naturalized, nor went through a naturalization proceeding. He has American citizenship due to his mother’s citizenship, and beyond being born had to take no additional steps to becoming an American, just as those born within the borders of the United States have to take no additional steps.

  108. Pch101 says:

    @Rafer Janders:

    Citizenship obtained via statute is naturalization, by definition.

    Jus sanguinis citizenship, which is what Ted Cruz has, does not come from common law, contrary to your assertions. I’ve provided specific information above that will easily confirm that point.

    The Constitution provides for jus soli citizenship and empowers Congress to naturalize others.

    Congress can’t pass a law that would take away jus soli citizenship, but it could do away with jus sanguinis citizenship if it chose to. Jus sanguinis citizenship can also be revoked in some cases, as was decided in Bellei. Jus sanguinis citizenship is not equal to jus soli citizenship in that respect.

    (And no, Vance was not on point, because Vance was born in the US. Afroyim is also not on point, as he was naturalized IN the United States, unlike Bellei who claimed jus sanguinis citizenship.)

  109. Pch101 says:

    To provide context for the above cases, the text of the 14th amendment: “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 operative phrase is “in the United States.” Vance was born in the US, Afroyim was naturalized in the US, Bellei was born abroad and claimed citizenship through an American parent, so he was neither.

  110. HarvardLaw92 says:


    Just curious, but what exactly do you hope to accomplish here beyond being unbelievably pedantic? The law clearly recognizes jus sanguinus citizenship as being the exact equivalent to jus soli citizenship. A person born a citizen abroad by virtue of statute is equally a citizen of the United States, by birth. More importantly, SCOTUS has been more than clear that any citizen, regardless of how he/she obtained citizenship, cannot be deprived of it without their assent. Congress can pass any number of laws, but absent clear intent on the part of the citizen to give up his/her citizenship, they retain it regardless of whichever statutory speed bumps they may trigger. This is the part that you seem determined to ignore – citizenship can not be lost by means of statutory decree. It must be voluntarily given up.

    You may not like it, but Cruz is equally a citizen, equally eligible for the office of the presidency and will remain so unless and until he decides to voluntarily agree to cede his citizen status. There are about a billion valid reasons why Cruz shouldn’t be allowed anywhere near the White House. This conspiracy theory silliness isn’t one of them.

  111. Pch101 says:


    The law clearly recognizes jus sanguinus citizenship as being the exact equivalent to jus soli citizenship.

    You ought to read Bellei, which says that you’re wrong.

    Bellei lost his US citizenship because his jus sanguinis claim to citizenship was not protected under the 14th amendment. If you would bother to read Bellei, then you would know that the Supreme Court made a point of addressing why Bellei did not have 14th amendment protection, while Afroyim did.

    And as noted, Vance was born on US soil. It is not relevant to Bellei, who was not.

    You may not like it, but Cruz is equally a citizen

    Are you deliberately creating strawmen or do you not understand the argument?

    Cruz is clearly a citizen. Why you made that point, I don’t know, because nobody claimed that he wasn’t a citizen. (It would be appreciated if you would avoid ascribing arguments to me that I did not make.)

    But Cruz doesn’t appear to be natural born for the reasons that I have provided. And since Article 2 requires that the president be a natural born citizen, this is an issue unless and until Congress decides to define it today as it once did.

    You can’t point to a law that supports your position, because there isn’t one.

    Your case references clearly aren’t point.

    The claims of common law aren’t supported by an examination of the common law.

    And we don’t use the language of statutes written 200 years ago and long since repealed to determine what our laws are today.

    So I suppose that I could ask you what you hope to accomplish by making arguments that you can’t support.

  112. Mikey says:


    Cruz is clearly a citizen. Why you made that point, I don’t know, because nobody claimed that he wasn’t a citizen. (It would be appreciated if you would avoid ascribing arguments to me that I did not make.)

    But Cruz doesn’t appear to be natural born for the reasons that I have provided.

    How did he obtain citizenship?

    My daughter was born in Germany, in an American military hospital, to American citizen parents. I was stationed there in the Air Force, my now-ex wife was with me via command sponsorship. The hospital submitted to the State Department a “Consular Report of the Birth Abroad of a Citizen of the United States.” I assumed this meant my daughter is a natural born citizen. Am I mistaken? (Not that my daughter has any desire to run for President…)

  113. Jen says:

    There are two ways to become a US citizen. The first is that you are born a US citizen, the second is that you acquire citizenship through application–naturalization.

    There are then again two ways to be born a US citizen: you are either born to parents, one of whom or both are US citizens, OR you are born on US soil to non-citizen parents. If your parent(s) have US citizenship, citizenship is conferred through them. If your parents are not citizens, you must be born on US soil. Both of these two manners fit the definition of natural-born.

    Congress has passed restrictions on the maintenance of citizenship under very specific circumstances. That really doesn’t change the manner in which citizenship was initially conveyed.

  114. grumpy realist says:

    @Jen: What the anti-Cruz birthers are arguing is that there are actually three ways of getting citizenship:

    1) being born in the US
    2) being born outside the US but inheriting citizenship from one or both of your parents (“naturalized at birth”)
    3) being an immigrant.

    The argument of the really strict birthers is that only the first class is eligible to be POTUS. Some say that members of class two are eligible, but only if both parents are US citizens. Some argue that if you’re an originalist, members of the second class are eligible only if the father is a US citizen (mother’s citizenship being irrelevant).

    Then there are those who claim that anyone who claims dual citizenship is ineligible. (Which is a really stupid argument, because it means any other country that wants to make mischief just has to declare a particular American citizen to be a citizen of the other country.)

    All in all, Ted Cruz is getting hoisted on the exact same petard that he tried to raise against President Obama, and I’m loving it.

  115. Jen says:

    @grumpy realist: Oh, I understand what they are suggesting (and the three categories you mention are covered in my post–two variations through birth, one through application).

    My point is that parsing the birth variation is ridiculous. The ones giving Cruz a hard time seem to believe there is some magical component of US soil that is necessary to be POTUS. That’s nonsense. You are either born a citizen, or you become one. If you are born a citizen, you are, de facto, a “natural born” citizen.

    As HarvardLaw92 has pointed out, even the argument that the magical soil component is an “originalist” position is nuts, because those who wrote the Constitution were still around when this was clarified in 1790.

    I’m enjoying it too–to an extent. I was born overseas to US citizen parents, so the argument that I’m not a natural-born citizen naturally chafes ME a bit. The suggestion that the hundreds if not thousands of children born to US diplomats (many of whom were not born on US military bases, as I was not) are not natural born citizens is really pretty offensive.

  116. Pch101 says:


    US foreign embassies, consulates, etc. are considered to be US territory even though they are located abroad. I would assume that it applies to your situation — a US military facility is US territory.

  117. Pch101 says:

    @Jen: @Jen:

    those who wrote the Constitution were still around when this was clarified in 1790.

    To accept that argument, one would have to believe that a statute that was repealed two centuries ago is still in effect. Laws include definitions, and those definitions can change over time. As of today, “natural born” is not defined (although one would presume that Congress has the authority to define it once again if it passes a law.)

    In any case, Wong Kim Ark addresses jus sanguinis citizenship. The majority opinion cites this passage from a 19th century lawyer named Horace Binney as support for its argument:

    “The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle.”

  118. Jen says:


    From my understanding Wong Kim Ark addresses the citizenship issue of a child born in the US to non-citizen parents.

    What you are suggesting is that none of the children born outside of the US to citizen parents are natural born citizens. I would love to see this litigated, because I think it’s nonsense, and borderline offensive–particularly to those of us whose parents were serving their country overseas.

    I’m assuming that you’ve read this piece and reject it in its entirety? Because I ascribe to its assertion that natural-born means anyone who is a citizen *from birth.* Regardless of location.

  119. stonetools says:

    Heh . This is schadenfruede heaven for me, especially when I consider that one of the birthers was Rafeal effing Cruz. Maybe he is familiar with the Biblical proverb, “Whosoever diggeth a pit, shall fall in it. ” One thing is clear from all the lawyering here: it is not clear that Ted Cruz is eligible to be US President. In particular, there is this sentence:

    the children of citizens of the United States that may be born beyond Sea

    That sentence is just plain ambiguous, no matter in what sense you read it. The more restrictive reading-that the child born abroad must have two parents who are US citizens to be considered ” natural born”- is just as valid as the less restrictive reading . So I disagree here with HL 92, although I completely agree that there are more and better reasons why Ted Cruz shouldn’t be President. As an aside, my wife was born in Germany of two US citizens, but went through a naturalization process. (Apparently, her parents were told they had to do it in order to ensure she would have the rights of a US citizen. But maybe her parents being African American had something to do with that, too).
    Politically, what this means is that Trump will be able to beat Cruz over the head with this all primary season long. To that I say, “Good. It couldn’t happen to a more deserving a$$hole.”

  120. jukeboxgrad says:


    I’m assuming that you’ve read this piece

    That’s the key article that’s getting cited everywhere. The most serious response to that article (that I’ve seen) is here. Current top comment:

    As a Canadian I want to say that we do NOT want Cruz as a Canadian citizen as his positions are anathema to our polite, civilized, liberal society. If necessary we will build a wall and make Trump pay for it.

  121. stonetools says:


    I would love to see this litigated,

    That of course is the point. There actually is an issue here to be litigated, because the law is ambiguous. We can’t just dismiss the birther arguments here because the facts and the law are both clear. The law isn’t clear, although FWIW I believe SCOTUS would hold Cruz eligible.

  122. Pch101 says:


    Wong Kim Ark argues that the US has jus soli citizenship because of the common law as well as the 14th amendment, which meant that Wong Kim Ark was a US citizen even though he had foreign parents.

    That argument was constructed on the premise that English common law provides only for jus soli and does NOT include jus sanguinis. The case argues that jus sanguinis citizenship in Britain came from acts of Parliament, not from the common law, so any belief that jus sanguinis was the natural state of affairs was wrong.

    To put that into context, many countries have jus sanguinis and do not have jus soli — those who opposed Wong Kim Arks citizenship claims would have made the argument that jus sanguinis and not jus soli was some sort of global norm. The Wong Kim Ark case made the point that British traditions were different from those others, that every nation reserved the right to make these determinations, and that it was Britain that provided the model for the US.

  123. Jen says:

    So, what does it take to settle this (in other words, force the SC’s hand at making a decision)? NPR was interviewing someone who suggested that a Secretary of State would have to challenge Cruz’s name on the ballot–can this be done in the primary stage, or only for the general election ballot?

    My completely unfounded hunch is that the SC would find him eligible, but hey, let’s get this squared away, shall we?

  124. Mikey says:


    I would assume that it applies to your situation — a US military facility is US territory.

    It’s not, actually. US military facilities in Germany are owned by the German government and US forces are permitted to use them under the terms of Article 48 of the NATO SoFA Supplementary Agreement. The facilities are only leased to us.

  125. Jen says:


    I was curious about this and looked it up. You are correct–and, it amends my statement above. US bases are *not* considered “US soil” and children born on bases derive their citizenship solely through their parents.

    So, amending my statement above–accepting Pch101’s interpretation not one child born overseas to parents serving their country, military OR diplomatic OR private company is a natural born citizen.

    This is largely why I think this argument would sink like a rock in the Supreme Court.

  126. Pch101 says:


    The lesson to be learned from 1790 is that Congress has some leeway in defining “natural born” if it chooses to. The simple answer is for Congress to add a definition to immigration law that extends “natural born” status to those who have an American parent. They did it before, and they can do it again.

  127. Jen says:

    @Pch101: As much fun as it would be to watch this particular Congress flail between the “magic soil” crowd on one side and the military and diplomatic families on the other, no thanks. What Congress giveth, Congress can taketh away.

    I think every military and diplomatic family who has had or will have a child outside of the country deserves to know if they are preemptively foregoing their children’s ability to ever run for the highest office in the land simply because they chose to start a family while serving their country–without the whole “Congress may or may not change its mind somewhere down the line” hanging over their heads. That isn’t remotely fair or reasonable.

    Although you seem fairly certain that natural born means born on US soil, this doesn’t seem to be a majority opinion among US Constitutional scholars. There are plenty out there who have very persuasively argued that anyone born into citizenship, whether by nature of being born in the US or overseas to US citizen parents, are natural born.

  128. Pch101 says:


    There are plenty out there who have very persuasively argued that anyone born into citizenship, whether by nature of being born in the US or overseas to US citizen parents, are natural born.

    It appears to me that you want to be persuaded because you find the idea of a form of second-class citizenship to be distasteful. I’m not exactly crazy about it myself, but that has no bearing on what the Constitution says or what came from the common law.

    The fact that Katyal and Clement, who everyone likes to cite in this regard, made their argument by misstating common law (for which I provided an UK source that specifically contradicts them) and the Wong Kim Ark decision (which I quoted directly and also contradicts them) doesn’t give me much faith in their position.

    (Incidentally, the opinion in Wong Kim Ark also cited Dicey’s “Conflict of Laws” as an authority on jus sanguinis: “The acquisition of nationality by descent is foreign to the principles of the common law, and is based wholly upon statutory enactments.” This is precisely the opposite of what Katyal and Clement are saying.)

    It’s also absurd for Katyal and Clement to hang their hat on a statutory definition of “natural born” while ignoring the fact that the law was specifically repealed in 1795, just five years after it was written. No reason to ignore the fact that the nationalization laws that were passed in 1795, 1798 and 1802 dropped the use of the term for good.

    We should separate what we wish was true from what is, and either pass a law (which would be the easiest way to handle it) or else amend the Constitution if we don’t like it.

  129. HarvardLaw92 says:


    And as noted, Vance was born on US soil. It is not relevant to Bellei, who was not.

    Vance would be Cyrus Vance, the former Secretary of State. I believe you mean to refer to Terrazas, although you’ve made this error more than once now.

    Terrazas guts any operative impact stemming from the ruling in Rogers v. Bellei. It is of zero practical import for Congress to theoretically be able to pass statutes which can strip a citizen of his/her citizenship when SCOTUS has been more than clear that independently established voluntary assent on the part of the citizen is required to accomplish the revocation. Once someone is a citizen, regardless of how said person obtained citizenship, he or she remains a citizen until such time as they take affirmative action to relinquish. You are scope locked on a ruling which you think empowers your argument, but which is a dead fish here in the real world.

    You have also completely ignored Schneider v. Rusk, 377 U.S. 163 (1964). Congress may not pass laws which treat naturalized and native-born citizens differently with regard to revocation. To do so violates the due process mandate of the 5th Amendment.

    And we don’t use the language of statutes written 200 years ago and long since repealed to determine what our laws are today.

    Where it concerns the meaning of sections of the constitution itself, yes, we do, with regularity. What law school did you attend which didn’t teach you this?

    But Cruz doesn’t appear to be natural born for the reasons that I have provided.

    In your exhaustively presented opinion, anyway. In instances where the verbiage of the original body of the constitution is vague, there are two primary sources which the court utilizes to attempt to infer intended meaning – the documented content of the debates among the delegates to the constitutional convention through which the verbiage was originally derived and the enactments of the first Congress (comprised almost entirely of the same people as the first source) through which the provisions of the original corpus were activated into law.

    In the first instance, the communications surrounding the deliberation over the natural born clause make it clear that the intent of the clause was to prevent foreign machinations from influencing the office of the presidency, not to define some plot of magical soil and “other”.

    In the second instance, the Naturalization Act of 1790 is an enactment of the first Congress, and as such serves to clarify the intent of the ratified verbiage of Article 1. Subsequent enactments of later Congresses do not carry the same degree of informative weight in this regard, due to the increasing degree to which they were comprised of persons who were not delegates to the original constitutional convention.

    Furthermore, British common law serves as the basis for issues of law which are not formally enacted into law, both in the UK as well as in the pre-revolutionary colonies (and indeed today as well). Common law has no import in this situation, due to the fact that enacted British law had, for some time prior to the revolution, provided for the existence of subject status for those persons born extraterritorially of Britain proper. This law would have been in effect in the pre-revolutionary colonies, and the delegates would have been aware of its existence.

    The facts are these:

    Jus sanguinus citizenship was not an unknown concept to the original delegates

    Enacted British law in effect prior to the revolution explicitly provided for jus sanguinus citizenship / subject status.

    The communications between the original delegates clarify their intent in selecting the verbiage “natural born citizen” – to prevent foreign powers from interfering in US government, not to create two classes of US citizen, one inferior to the other.

    That intent was further clarified by those same delegates, acting in the first Congress, in their specific inclusion of persons born extraterritorial to the US as being natural born citizens.

    It is clear from these communications and enactments that the framers intended for “natural born” as expressed in Article I to encompass both jus soli and jus sanguinus citizenship.


    US citizenship can not be revoked by virtue of statutory process alone. It must be voluntarily and knowingly relinquished by the citizen, and that intent must be independently established

    US law may not treat naturalized and native-born citizens differently. There is, in fact, an excellent argument to be made that the due process clause of the 5th Amendment (which, coming later in time, overrules / modifies any verbiage ratified before it, including Article 1) makes it impossible to prevent a naturalized citizen from being equally eligible for the presidency.

    I will agree that SCOTUS needs to definitely address this issue, if for no other reason than to shut down this Birther idiocy once and for all, but when/if they do, they’ll be consulting the same sources I just delineated to you to infer intent. Surely you’re not so engaged in this Birther fantasy that you expect they’d ever rule anything other than direct equivalency. They’re not going to disenfranchise thousands of US citizens from being able to exercise a constitutional prerogative and create two classes of US citizen in the bargain. To think that they would is folly.

  130. Pch101 says:


    Just because “natural born” was defined by statute for a period of five years out of the last 225 does not mean that the definition is meaningful today. The law that included it was repealed and replaced in 1795 when George Washington was still president, which is a pretty good indication that the founders who you keep extolling were willing to toss it out in short order.

    But since you’re fond of relying upon laws that were repealed by the founders in the 18th century, let’s look at the law that replaced it and its provisions for jus sanguinis citizenship: “the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.”

    Notice that the “natural born” language was eliminated a mere five years after it first appeared. Would you have us believe that this omission is some kind of a typographical error or did the founders just forget about it? (Oops.)

    I’m curious how far you want to take this line of thinking. Should we rely upon the 1790 law to limit citizenship to white people? Should we rely on the first Militia Act to determine current equipment levels for the National Guard? Should copyright be forever limited to 14 years (with an extension) because the founders defined it that way? I’m not sure why Congress bothers to pass any laws at all, since those laws are apparently permanent in nature and can’t be repealed.

  131. Mikey says:

    @Pch101: Is there really a “different” sort of citizenship since the baby was born outside the United States? I mean, when my daughter was born, there wasn’t an application for naturalization in sight. We filed a report of the birth of an American citizen, full stop. It doesn’t seem in any way related to common sense to differentiate her just because she was born in a military hospital overseas (not that that makes any difference when it comes to the law, I know).

    Eh…this will probably never get answered anyway, unless there’s some way to get it in front of SCOTUS while the question is still relevant (i. e. during a Presidential campaign) and nobody involved seems truly serious about doing so. They just want to football it around to get a bump in the polls.

  132. Pch101 says:


    Is there really a “different” sort of citizenship since the baby was born outside the United States?

    Well, as Bellei found, he could lose his jus sanguinis citizenship because he was neither born nor naturalized in the US, so he wasn’t protected by the 14th amendment. So yes, Bellei had a different status of citizenship — his citizenship was not guaranteed as a Constitutional right.

    It’s pretty clear cut that a person who is born as an alien and subsequently naturalizes cannot be president. So those individuals also have a different, lesser status of citizenship — even if they are exceptionally qualified and loyal to the country, they too are denied an opportunity to be president.

    The “common sense” of the late 18th century was not necessarily aligned with our own. After all, you had to be white to be a citizen either in 1790 or in 1795, yet nobody is claiming today that we are obliged to define citizenship as being for whites only as they did then.

    Also, the general difference between the 1790 and 1795 laws was that the latter was more restrictive. That trend continued with the 1798 law, which was associated with the xenophobic Alien and Sedition Acts. That would suggest that the omission of “natural born” beginning in 1795 was no accident — they wanted immigration to a point, but were also fearful of it.

    We should feel no obligation to believe that the views laid out in 1790 were set in stone. Even they didn’t believe that, as they made numerous changes to nationality law over a short period. If you want to modernize the Constitution, then take the logical leap forward and amend it so that any citizen can be president, including those who were born as aliens.

  133. HarvardLaw92 says:


    Yet again – the enactments of the first Congress are informative as to the intent of the framers regarding the verbiage of the Constitution. The enactments of later Congresses much less so, if at all.

    You can dance around that point all you like, but the guys who wrote the constitution expressed their clear intent via an act of Congress they formulated and passed into law mandating that citizens born outside the borders of the US are natural born citizens. There is no way that they were ignorant of the ramifications of doing so. If you consider yourself to be more of an expert on their intent than their clearly expressed statement of it, which seems to be the case, head down to DC and knock yourself out (assuming you’re an attorney, otherwise find one – and good luck with that, because you’ll need it – willing to take on this turkey of a case.)

    With that said, you may have the last word. I’ve already wasted more energy on dignifying this silliness that it ever merited.

  134. Pch101 says:


    the enactments of the first Congress are informative as to the intent of the framers regarding the verbiage of the Constitution.

    Those founders purged the “natural born” definition from the naturalization law in 1795.

    Those founders continued to avoid it in the amendment to the 1795 law that was passed in 1798.

    They continued to pass on it in 1802.

    Four naturalization laws in twelve years, and only one of them included that language. Furthermore, that language disappeared as the naturalization laws became more specific and made it more difficult to obtain citizenship.

    You want to hang your hat on a definition that existed for five years, that was repealed 220 years ago and that was subsequently avoided in the more stringent naturalization laws that were passed during the Washington, Adams and Jefferson administrations. I would suggest that you find a better argument, unless you earnestly believe that repealing a law makes no difference.

  135. HarvardLaw92 says:


    I bet my co-worker, who’ll gamble on ANYthing, that you wouldn’t be able to resist and would be compelled by your obsession with this silliness to grab the last word.

    Thanks for the $1,000 bucks. Have a nice evening. 🙂

  136. Pch101 says:


    Just be sure to make time in your schedule to pick up a musket and 24 rounds of ammunition. After all, we wouldn’t want to violate the Militia Act of 1792.