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The birther farce gets a second act

The curious case of ‘Calgary Cruz’ and the U.S. Constitution


 
The birther farce gets a second act

Photo by Justin Sullivan/Getty Images

Was it Marx who said that history repeats itself, the first time as farce, the second time as even zanier farce? In the late stages of the 2008 presidential primaries, rogue Hillary Clinton fans, desperate to avert defeat, started spreading weird rumours about the circumstances of the birth of rival Democrat Barack Obama. It is one of history’s great forgotten jokes that what has come to be known as “birtherism” began within the Democratic party. The official, acknowledged facts of Obama’s early life were awkward enough, but Clintonites doubled down, attempting to cast doubts on his parentage and his birthplace.

Those doubts have trundled along in defiance of all counterattack and scorn, and a significant fraction of the American public can no longer be convinced by anything that contradicts them. It is not clear, however, whether there is any point to birtherism. Under even the loopiest theories, it is pretty clear that Obama proceeded, somewhere on planet Earth, from the body of Stanley Ann Dunham, American citizen. This almost certainly makes him a “natural-born” American eligible for the presidency.

Act Two of the farce is beginning now, for the brightest early hope of the Republican party in 2016 may be junior senator and former Texas solicitor-general Ted Cruz. Cruz’s following is growing fast. The former star litigator has a plan for avoiding Mitt Romney’s mistakes, his intellectual calibre is impressive, and the Hispanic name and background don’t hurt. But however far his cause gets, he comes to the race pre-birthered. Cruz was born in Calgary on Dec. 22, 1970; his father, a Cuban exile, and his mother, an American from Delaware, were oil-patch folk.

Cruz’s family, which returned to the U.S. four years later, was a little more stable than Obama’s. But his acknowledged legal status at birth is virtually a perfect match to the one conspiracy theorists have been trying to attach to the current President. Daily Kos, the popular left-Democrat web organ, has already dubbed the senator “Calgary Cruz.” We never expected to see a presidential hopeful with a nickname taken from a Scott Young hockey book or a pro-wrestling undercard, but there you have it.

Can Calgary Cruz be president? The term “natural-born” in Article Two of the U.S. Constitution is not defined in the document, is not specified in the surviving record of the constitutional debates and has never been argued before the Supreme Court. We know exactly why the founders wanted to surround the chief magistracy with tight eligibility criteria: the early republic was beset by foreign adventurers and schemers, and Americans feared subversion by some wealthy interloper of princely rank. (They were particularly nervous about Frederick, duke of York, second son of George III. But they might not have liked Arnold Schwarzenegger much either.) Article Two clearly excludes citizens who have had to be naturalized to become Americans. That was the point.

When it comes to Americans born abroad, arguments about eligibility can be constructed for both sides. But the case against Cruz and people in his position is flimsy. There is a strong natural logic to the idea that Cruz would be a “natural-born citizen,” since he never had to do anything but cross the border to inherit his mother’s U.S. citizenship rights. When Congress originally set out its own eligibility criteria, both houses were careful not to exclude non-native citizens. It seems improbable that founders pressed into expensive, dangerous overseas service could have meant to exclude their own children born abroad; Federalist Papers author John Jay, the first person known to have proposed the “natural-born” limitation on the presidency, had children in both France and Spain. And while the Constitution does not define “natural-born,” the Naturalization Act of 1790 specified that the term includes Americans born outside the U.S., “provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”

These are only the highlights of a mass of evidence, and there is nothing on the other side but speculation about what esoteric, counterintuitive significance “natural-born” might have meant at the time of the founding. But it will be hard for the issue to be firmly settled by the Supreme Court until a Calgary Cruz or a Johannesburg Joe Blow actually wins a U.S. election. If Panama-born John McCain could have closed the deal, he might have spared us all this spectacle.

On the web: For more Colby Cosh, visit his blog at macleans.ca/colbycosh


 
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The birther farce gets a second act

  1. I think the case on Obama rest’s on the fact his father was a British subject and his American mother was underage but given I don’t believe Obama Sr. was his father, I think Frank Marshall Davis was and Obama filled in as the surrogate as Davis was married..

    • And your evidence? Evidence: you know, documentation? Not speculation derived from speculative translation of ancient books of dubious authorship and authenticity. Or idle speculation from aluminum-hatted Area 51 fans. Evidence. Facts! And happy Flying Spaghetti Monster to you.

      • At this point, it is shear speculation. However just based on physical evidence, Obama looks much more like FMD than Obama Sr.

  2. Just to clear up some points: Stanley Ann Dunham was too young, by a matter of months, to pass on US citizenship, if Obama Jr. was not born in the United States.

    And now to the main point: US citizenship isn’t acquired by the Coken concept of perpetual allegiance, based on jus solis and created by the plenary authority of government. It is acquired by free ‘consent’, following the Lockean concept of “consent-based” citizenship and, in the case of juveniles, under the cloak of allegiance of their parents’ consent. An Art. II, §1, cl. 4 natural born Citizen, then, is a US citizen at birth who has acquired US Citizen, naturally, without reliance on the plenary authority of government, under the cloak of allegiance of their parents’ consent.

    With the correct definition of an Art. II, §1, cl. 4 natural born Citizen firmly in place, one can quickly see that neither Obama or Sen. Cruz are Art. II, §1, cl. 4 natural born Citizens.

    ex animo
    davidfarrar

    • WHOA!

      NO AGE REQUIREMENT FOR PARENTS CITIZENSHIP!

      Not in my copy of U.S. Constitution.

      Suggest remedial reading.

      BTW, if you read Article II carefully, you will see that because of a possibly misplaced comma, no one has been Constitutionally eligible to the office of president sinct the early 19th century. Stuff that in your Scalia and smoke it.

      • Sorry, you are wrong on every one of your points.

        ex animo
        davidfarrar

  3. ..and still they crawl out from under their camo covered stones to cast doubt on The President’s legitimacy, spreading rumor and gossip, quoting obscure legalese to cover their white hoods and burning crosses.

    How very predictable.

  4. At adoption the Constitution did not say who should be citizens of the U.S., it only gave Congress the authority to establish a uniform rule of naturalization.

    In the first few months after adoption before Congress had established these rules there was only one way for one to become a citizen of the U.S., this was by being born in the U.S. to citizen parents. These children are who the Framers understood to be the “natural born Citizens”.

    Persons born outside the U.S. to citizen parents are not “natural born Citizens”. If they were, Congress would not of had to use the authority granted to them by the U.S. Constitution to establish them as “citizens of the United States”.

    • Or maybe, just maybe, the intent was to prevent persons born by caesarean section from becoming president.

      • Hahaha! Keith…that is perhaps your best “snark” to date.

        • Thanks! :-D

      • Ahh, so Macbeth is prevented from being President. Who knew?

    • Well of course, since ‘nature’ in ‘natural’ means all of nature which by definition meant the 13 colonies and their trees and rocks.

  5. Kenya, Kalgari, what’s the difference? They’re all furriners to a birther. And Kalgari has oil and sounds like some Arab place, anyway.

  6. Not to be nitpicky but there IS US soil in Calgary. If Mr. Cruz was born in a US Customs office or area like those which exist at the Calgary airport OR if he was born at the US embassy in Calgary, he was born on US soil. Birthers stand aside. If his mother went into labor at YYC, this boy’s is a Yankee Doodle Dandy!! Yee Haw!

    • Correction: (1) There is no US Embassy in Calgary. Consulate yes, but the embassy is in Ottawa. (2) Under the treaty that established US preclearance at Canadian airports, the airport is crown land and the US has no right to arrest anyone at a preclearance center. Anyone arrested at US preclearance is arrested by RCMP officers and not by US authorities. If Cruz was born at YYC he would still be a Canadian citizen. Furthermore Cruz is a subject of Queen Elizabeth II via his birth in Canada. The Canadian government has no record of him renouncing his Canadian citizenship. As a result of owing allegiance to a foreign head of state, Cruz disqualifies himself.

      • One time, I was in the US customs area in YYC and a US customs officer told me that I was on US soil, Luis. Regardless, my comment was a joke, eh? Never meant to be taken seriously….

        • The customs officer should know better, but just like TSA, they pick the dumbest of the bunch. I have studied the status of US extradition rights in Canada and since Canadian airports are crown properties, US officials can’t arrest anyone on Canadian soil. They simply call RCMP to scoop the arrestee away. The preclearance treaty allows Canada to open preclearance locations in the US if they choose (so far they have not exercised this right) and the same case is recognized: should someone get arrested at a Canadian preclearance, Canada has no right to arrest them on US soil. Airports in the US are operated by local port authorities, and therefore local police would be called to haul the person away.

          As for Cruz, the fact that he is still a subject of Queen Elizabeth II via his birth in Calgary does disqualify him. Imagine him having to bow to Her Majesty at a dinner simply because she is the Canadian head of state. Until he officially renounces his rights as a Canadian citizen at any Canadian consulate in the US and pay the applicable renunciation fee, he is still a citizen of the Great White North and a subject of Her Majesty.

  7. So it is now strange and weird to expect those who would govern to actually follow some rules?

    I remember McCain’s place of birth being raised. He was born in central america somewhere to a US military family, and the subject was raised, discussed and a conclusion agreed upon that he indeed qualified.

    With Obama the reaction was to try to shuffle it away. Eventually a birth certificate was produced, but the campaign used it as a way to paint those who asked. I consider the issue a way of determining fools; either conspiracy cranks who continue to harp on it, or those who would take a politician at his word and consider it below them to actually check. Looks like we can peg Cosh with the second.

    As for Cruz, he was born in Calgary, his mother was American from what I understand. It will be debated and some consensus will be arrived at. I suspect it will be an enjoyable show, a continuation of the current reaction to Cruz.

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