By Hans von Spakovsky
* * *
Harvard law professor Lawrence Tribe’s view of the Constitution and the “natural born” citizen issue seems to blow with the political winds.
* THE LATEST EXAMPLE BEING HIS 180-DEGREE TURN REGARDING "BIRTHRIGHT CITIZENSHIP."
Why has his view completely switched from 2008? Is it because, as Sen. Ted Cruz said at the Republican debate on Jan. 14, Tribe is a “left-wing judicial activist” and “a major Hillary Clinton supporter?”
* Er... YEAH!
On March 19, 2008, Tribe and Theodore B. Olson, solicitor general during the last Bush administration, published an “opinion letter” in relation to John McCain and the meaning of the “natural born” citizen requirement. In that letter, Tribe said the exact opposite of what he just said in his [recent, infamous] Boston Globe commentary:
“The U.S. Supreme Court gives meaning to terms that are not expressly defined in the Constitution by looking to the context in which those terms are used; to statutes enacted by the First Congress...and to the Common Law at the time of the Founding. These sources all confirm that the phrase ‘natural born’ includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance.”
Tribe (and Olson) then went on to specifically cite the successive statutes passed by Congress on this issue, including the Naturalization Act of 1790. They made the point that “the statute that the First Congress enacted on this subject not only established that such children are U.S. citizens, but also expressly referred to them as ‘natural born citizens.’”
They even cite to the British Nationality Act of 1730, which provided that children born to a British citizen were “natural-born Subjects...to all Intents, Constructions and Purposes whatsoever.”
According to Tribe – at least in 2008 – Sen. McCain’s status as a natural born citizen, though he was born abroad, was “consistent with British statutes in force when the Constitution was drafted, which undoubtedly informed the Framers’ understanding of the Natural Born Citizen Clause.”
For those who think the case regarding John McCain is different because he was born on a U.S. military base, Tribe blithely dismisses that as an issue. The opinion letter says that “regardless of the sovereign status of the Panama Canal Zone at the time of Senator McCain’s birth, he is a ‘natural born’ citizen because he was born to parents who were U.S. citizens.”
* FOLKS. I'M ALWAYS HONEST WITH YOU, RIGHT? SO... LET ME REACT AS I WOULD IF THIS WERE AN ARTICLE I MAINLY DISAGREED WITH:
* PARENTS... PLURAL... OR PARENT... SINGULAR?
* OBVIOUSLY THIS QUESTION NEEDS TO BE ADDRESSED.
* THE AUTHOR OF THIS PIECE UNFORTUNATELY FAILS TO ADDRESS THIS QUESTION. INSTEAD... HE CONTINUES:
In a prior article, I explained the legal interpretation of the requirement in Article II, Sec. 1 of the Constitution that a president be a “natural born Citizen.” The Framers had a deep understanding of British Common Law and applied its precepts in drafting the Constitution. One of those precepts was that children born to a British citizen anywhere in the world, even outside the dominions of the British Empire, were “natural born” citizens of the Empire who owed their allegiance to the Crown.
* AGAIN... "A" BRITISH CITIZEN? ASSUMING THE SINGULAR... WOULD THE "A" BE THE MOTHER... OR THE FATHER?
* AGAIN... FOLKS... BASIC INTEGRITY DEMANDS THAT THESE QUESTIONS BE ASKED AND ANSWERED!
The First Congress, which included many of the Framers, codified this view of a natural born citizen in the Naturalization Act of 1790, which specified that the children of a U.S. citizen born “out of the limits of the United States, shall be considered as natural born Citizens.” The modern version of this Act is found at 8 U.S.C. §1401. There is little doubt that Ted Cruz meets this requirement since his mother was a U.S. citizen when he was born.
* AGAIN... JUST OUT OF CURIOSITY... DOES THE AUTHOR BELIEVE THAT HAD IT BEEN CRUZ'S FATHER WHO WAS THE AMERICAN AND CRUZ'S MOTHER WHO WAS THE CANADIAN THAT THE SAME LOGIC WOULD APPLY TO ANALYZING THE STATUTE AND ITS HISTORICAL/CULTURAL MOORINGS WOULD APPLY?
* JUST... ASKING.
* I TRULY AM SADDENED THAT THE CONSERVATIVE REVIEW EDITOR FAILED TO DEMAND THAT THESE QUESTIONS - AND THE AUTHORS ANSWERS TO THEM - MAKE NO APPEARANCE IN THIS OPINION PIECE.
In a Boston Globe commentary on Jan. 11, 2016, Lawrence Tribe now claims that “the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on U.S. soil to be a ‘natural born’ citizen.”
* SO... DID TRIBE JUST... Er... CHANGE HIS MIND... "COINCIDENTALLY" TIMED TO COINCIDE WITH CRUZ'S RUN FOR THE WHITE HOUSE?
* WHAT A P.O.S., HUH?!
Tribe [now] sarcastically claims that Ted Cruz is disqualified because the type of judge that Cruz admires “and says he would appoint to the Supreme Court is an ‘Originalist,’ one who claims to be bound” by the historical meaning of the Constitution when it was adopted. Based on the legal principles that prevailed at the time of the Constitution, Tribe now says the supposed “original” meaning of “natural born” citizen only applies to someone born on U.S. soil. Funny how Tribe’s recitation of the legal principles that supposedly prevailed in the late 1700s and his interpretation of the original meaning of this constitutional provision have completely changed in only eight years.
* AGAIN... TOTAL P.O.S.
Just about the only true fact in Tribe’s Jan. 11 opinion is his assertion that this issue has never been settled by a Supreme Court opinion.
In 2008, Lawrence Tribe agreed with me. In 2016, he has suddenly changed his mind. I guess that is an example of the Harvard Law School view of a “living Constitution.”