Carmon Elliott v. Ted Cruz

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carmon Elliott, :
Petitioner :
:
v. :
:
Ted Cruz, :
Respondent : No. 77 M.D. 2016
ORDER
AND NOW, this 28th day of April, 2016, the opinion filed March 10,
2016, in the above-captioned matter shall be designated Opinion rather than
Memorandum Opinion, and it shall be reported.
DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carmon Elliott, :
Petitioner :
:
v. : No. 77 M.D. 2016
: Heard: March 10, 2016
Ted Cruz, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY
SENIOR JUDGE PELLEGRINI FILED: March 10, 2016
Before this Court is a petition to set aside the nomination petition of
Ted Cruz (Candidate), pursuant to which he seeks to appear on the April 26, 2016
primary election ballot for the Office of the President of the United States of
America, filed by Carmon Elliott (Objector), a registered Republican who resides
and votes in Pennsylvania, asserting that the Candidate is ineligible to hold that
office under the United States Constitution.
The parties have stipulated that the Candidate was born on December
22, 1970, in Calgary, Alberta, Canada; that his mother, Eleanor Darragh, was born
on November 23, 1934, in the State of Delaware; that his mother is and has always
has been a United States citizen, since the moment of her birth; that at the time of
the Candidate’s birth, his mother had been physically present in the United States
for more than ten years of her life, including at least five years after she reached
the age of fourteen; and that the Candidate was a citizen from the moment of his
birth.
Because the Candidate was born in Canada, Petitioner contends that
Candidate’s name should be stricken from the Pennsylvania 2016 primary ballot
because he is not a “natural born citizen” within the meaning of Article II, Section
1,1 clause 5 of the United States Constitution.
1
The entire text of Article II, Section 1 provides:
The executive Power shall be vested in a President of the
United States of America. He shall hold his Office during the
Term of four Years, and, together with the Vice President, chosen
for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the whole
Number of Senators and Representatives to which the State may be
entitled in the Congress: but no Senator or Representative, or
Person holding an Office of Trust or Profit under the United States,
shall be appointed an Elector.
The Congress may determine the Time of chusing the
Electors, and the Day on which they shall give their Votes; which
Day shall be the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the
United States, at the time of the Adoption of this Constitution,
shall be eligible to the Office of President; neither shall any Person
be eligible to that Office who shall not have attained to the Age of
thirty five Years, and been fourteen Years a Resident within the
United States.
In Case of the Removal of the President from Office, or of
his Death, Resignation, or Inability to discharge the Powers and
Duties of the said Office, the Same shall devolve on the Vice
2
President, and the Congress may by Law provide for the Case of
Removal, Death, Resignation or Inability, both of the President and
Vice President, declaring what Officer shall then act as President,
and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected.
The President shall, at stated Times, receive for his
Services, a Compensation, which shall neither be encreased nor
diminished during the Period for which he shall have been elected,
and he shall not receive within that Period any other Emolument
from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take
the following Oath or Affirmation:--“I do solemnly swear (or
affirm) that I will faithfully execute the Office of President of the
United States, and will to the best of my Ability, preserve, protect
and defend the Constitution of the United States.”
U.S. CONST. art. II, § 1.
The Twelfth Amendment further provides:
The Electors shall meet in their respective states and vote
by ballot for President and Vice-President, one of whom, at least,
shall not be an inhabitant of the same state with themselves; they
shall name in their ballots the person voted for as President, and in
distinct ballots the person voted for as Vice-President, and they
shall make distinct lists of all persons voted for as President, and of
all persons voted for as Vice-President, and of the number of votes
for each, which lists they shall sign and certify, and transmit sealed
to the seat of the government of the United States, directed to the
President of the Senate;--The President of the Senate shall, in the
presence of the Senate and House of Representatives, open all the
certificates and the votes shall then be counted;--The person
having the greatest number of votes for President, shall be the
President, if such number be a majority of the whole number of
Electors appointed; and if no person have such majority, then from
the persons having the highest numbers not exceeding three on the
list of those voted for as President, the House of Representatives
shall choose immediately, by ballot, the President. But in choosing
3
I.
A.
Initially, the Candidate contends that we should not address the
question of whether he is a “natural born citizen” because it presents a non-
justiciable political question. He contends that this doctrine applies because the
question of whether a candidate is eligible to take office as President of the United
States is within the purview of the Electoral College or the United States Congress.
The political question doctrine is invoked only when the framers of
the Constitution made clear their intention that the judiciary abstain from resolving
a particular question of constitutional interpretation. In Zivotofsky ex rel.
the President, the votes shall be taken by states, the representation
from each state having one vote; a quorum for this purpose shall
consist of a member or members from two-thirds of the states, and
a majority of all the states shall be necessary to a choice. And if the
House of Representatives shall not choose a President whenever
the right of choice shall devolve upon them, before the fourth day
of March next following, then the Vice-President shall act as
President, as in the case of the death or other constitutional
disability of the President.--The person having the greatest number
of votes as Vice-President, shall be the Vice-President, if such
number be a majority of the whole number of Electors appointed,
and if no person have a majority, then from the two highest
numbers on the list, the Senate shall choose the Vice-President; a
quorum for the purpose shall consist of two-thirds of the whole
number of Senators, and a majority of the whole number shall be
necessary to a choice. But no person constitutionally ineligible to
the office of President shall be eligible to that of Vice-President of
the United States.
U.S. CONST. amend. XII.
4
Zivotofsky v. Clinton, the United States Supreme Court addressed this doctrine,
stating that:
In general, the Judiciary has a responsibility to
decide cases properly before it, even those it “would
gladly avoid.” Cohens v. Virginia, 6 Wheat. 264, 404, 5
L. Ed. 257 (1821). Our precedents have identified a
narrow exception to that rule, known as the “political
question” doctrine. See, e.g., Japan Whaling Assn. v.
American Cetacean Soc., 478 U.S. 221, 230, 106 S. Ct.
2860, 92 L. Ed. 2d 166 (1986). We have explained that a
controversy “involves a political question . . . where there
is ‘a textually demonstrable constitutional commitment
of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for
resolving it.’” Nixon v. United States, 506 U.S. 224, 228,
113 S. Ct. 732, 122 L. Ed. 2d 1 (1993) (quoting Baker v.
Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663
(1962)). In such a case, we have held that a court lacks
the authority to decide the dispute before it.
132 S. Ct. 1421, 1427, 182 L. Ed. 2d 423 (2012); see also Baker v. Carr, 369 U.S.
186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Sweeney v. Tucker, 375 A.2d 698 (Pa.
1977).
The political question doctrine should not be invoked then unless it is
clear that a court is incapable of rendering a decision because it would otherwise
be plainly inconsistent with Marbury v. Madison’s basic assumption that the
Constitution is judicially declarable law. 1 Cranch 137, 2 L. Ed. 60 (1803).
5
B.
The touchstone in determining whether the political question doctrine
applies is whether the resolution of the question has been textually committed to
one or the other political branches of the federal government. To glean whether
the Framers textually committed to Congress the issue of a person’s eligibility to
serve as President, the Court turns to Article II, Section 1, clauses 2 and 3 of the
United States Constitution as originally adopted, as well as the Twelfth
Amendment,2 which set forth the procedure by which a person was elected to the
office of President of the United States. These provisions:
1. vested in the legislatures of the several states, not
Congress, the power to “appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors,
equal to the whole Number of Senators and
Representatives to which the State may be entitled.”3
2. commanded the electors, once selected, to meet in their
respective states, and vote by ballot for two persons, and
then to transmit their votes to the nation’s seat of
government.
2
The Twelfth Amendment changed the Electoral College’s voting procedure, requiring
each elector to cast two ballots: one expressly for President and the other distinctly for Vice
President. It reaffirmed Congress’s role in counting the ballots, merely revising the procedure to
be followed in case none of the candidates obtained a majority of electoral votes. It also added
the language, “But no person constitutionally ineligible to the office of President shall be eligible
to that of Vice-President of the United States.” U.S. CONST. amend. XII. None of these
provisions evidences a textually demonstrable constitutional commitment of the issue of
Presidential eligibility to Congress.
3
U.S. CONST. art. II, § 1, cl. 2.
6
3. commanded, upon receipt, the President of the Senate to
open the ballots and count the votes in the presence of the
members of the Senate and the House of Representatives.
4. provide that only in the case of a tie, or the absence of a
majority, does the Constitution allow Congress to choose
the President and Vice President.
As can be seen, the Constitution does not vest the Electoral College
with power to determine the eligibility of a Presidential candidate since it only
charges the embers of the Electoral College to select a candidate for President and
then transmit their votes to the nation’s “seat of government.” U.S. CONST. amend.
XII.
Likewise, Congress has no control over the process by which the
President and Vice President are normally chosen, other than the very limited one
of determining the day on which the electors were to “give their votes.” U.S.
CONST. amend. XII. Moreover, this Constitutional design clearly served to insulate
the Presidential election process from—not to commit it to—Congress and
potential interference. This is evident because the Constitution also decreed that
members of Congress may not serve as presidential electors.
Comparison of the provisions regarding Presidential eligibility with
those regarding the eligibility of members of Congress further supports this
conclusion. With respect to the latter, the Constitution provides that “[e]ach house
[of Congress] shall be the Judge of the Elections, Returns, and Qualifications of its
own Members,” including whether they have the requisite U.S. citizenship required
for service in the house to which the person has been elected. U.S. CONST. art. I, §
7
5, cl. 1; see also U.S. CONST. art. I, § 2, cl. 2; U.S. CONST. art. I, § 3, cl. 3. No one,
then, can serve in Congress without satisfying its internally enforced membership
rules.4 Significantly, no Constitutional provision places such power in Congress to
determine Presidential eligibility. Moreover, other than setting forth the bare
argument, the Candidate offers no further support for the contrary proposition.
Accordingly, under Article I, Section 1, once the electoral votes are
counted and a Presidential candidate has won a majority of the electoral votes, the
Constitution does not expressly vest any entity of the federal government with the
power to ensure that only persons who are constitutionally eligible will exercise
the vital executive power vested in the President. Any one may serve as President
so long as he or she has won a majority of the electoral vote, unless held in check
by the law of our Constitution as applied by the judicial branch. This analysis
shows that determination of the eligibility of a person to serve as President has not
been textually committed to Congress.
C.
As to whether the issue is non-justiciable because it is beyond judicial
competence due to a lack of standards to apply, the issue of American citizenship,
4
As a general rule, then, no one can serve in Congress without satisfying the internally
enforced membership rules, but even this concept has its limits. In Powell v McCormack, 395
U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), the United States Supreme Court rejected an
argument that the case ought to be dismissed as presenting a political question. The Court
concluded, in a case involving the refusal of the House of Representatives to seat Adam Clayton
Powell, that the decision to exclude members was not textually committed to the House--with the
exception of the criteria identified in Article I, Section 5 relating to age, citizenship, and state
residency. Since the refusal to seat Powell was based on a determination that Powell had acted
unethically prior to his election, the Court found the exclusion not authorized by Article I and
ordered Powell’s seating.
8
including that of a natural born citizen, has been decided, albeit in other contexts,
without difficulty in applying the standards. See, e.g., Miller v. Albright, 523 U.S.
420, 423, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998); United States v. Wong Kim
Ark, 169 U.S. 649, 655, 18 S. Ct. 456, 42 L. Ed. 890 (1898).
In Wong Kim Ark, a Chinese man born in America to a father and
mother, both of whom were Chinese citizens domiciled in the United States,
claimed that he was a citizen by birth, not subject to the Chinese exclusion laws.
In addressing the merits of his argument, the Supreme Court’s analysis began with
an exposition of the English common law and a survey on the cases and legal
treatises addressing the subject. Wong Kim Ark, 169 U.S. at 655-58, 18 S. Ct. at
459-60. The Court then reviewed early American authorities which, it concluded,
supported the view that American judges, federal and state, had applied the English
rule. Id. 169 U.S. at 658-66, 18 S. Ct. at 460-63. The Court held:
there are none that can constrain or permit the judiciary
to refuse to give full effect to the peremptory and explicit
language of the [F]ourteenth [A]mendment, which
declares and ordains that “all persons born or naturalized
in the United States, and subject to the jurisdiction
thereof, are citizens of the United States.”
Id. 169 U.S. at 694, 18 S. Ct. at 474.
Most recently, the Supreme Court applied standards to find that the
“Eighth Amendment prohibits certain punishments as a categorical matter. No
natural born citizen may be denaturalized.” Hall v. Florida, 134 S. Ct. 1986, 1992,
9
188 L. Ed. 2d 1007 (2014). Plainly, this rule could never be applied if the question
of natural born citizen were a non-justiciable political question.
Because there is neither textually demonstrable constitutional
commitment entrusting the determination of a person’s eligibility to be President to
the Electoral College or Congress nor a lack of a judicially discoverable and
manageable standards for resolving the issue, the political question doctrine does
not apply in this case. As such, the Court will proceed to address the merits of the
claim.
D.
Article II, Section 1, clause 4 of the United States Constitution
provides:
No Person except a natural born Citizen, or a
Citizen of the United States, at the time of the Adoption
of this Constitution, shall be eligible to the Office of
President[.]
U.S. CONST. art. II, § 1, cl. 4.
The Constitution does not define the term “natural born citizen,” nor
was it discussed during the debates at the Constitutional Convention of 1787, and
the Supreme Court of the United States has never addressed its meaning within the
specific context of a challenge to the eligibility of a candidate. Because of the
10
paucity of both constitutional history and legal precedent, the meaning of a
“natural born citizen” has been the subject of much dispute.
The framework for addressing who is natural born citizen within the
meaning of Article II, Section 1 centers on the circumstances of one’s birth. Here,
Objector contends that a person must be born within the geographical boundaries
of the United States to fall within the definition and suggests that this Court
interpret Article II, Section 1 of the Constitution as requiring Jus soli (“law of the
soil”) citizenship—that is, citizenship vested in a person based on the location of
his or her birth, regardless of the parents’ citizenship status. Conversely, the
Candidate contends that one is a natural born citizen, regardless if born outside of
the United States, where one of his parents is a United States citizen, thereby
vesting him with citizenship at birth. This type of citizenship is known as Jus
sanguinis (“law of the blood”) citizenship and inheres in a person based on his
ancestry.
This uncertainty has led to questions of eligibility to hold that office
each time a person who runs for President is not born on American soil or, for that
matter, is born on American soil to non-citizens. It was argued that Republican
nominee Charles Evans Hughes, who was born in the United States to non-citizen
parents, was not a natural born citizen. Breckinridge Long, Is Mr. Charles Evans
Hughes a “Natural Born Citizen” Within the Meaning of the Constitution?, 49
CHI. LEGAL NEWS 146 (1916). When Senator John McCain ran for President in
2008, arguments were made that he was not a natural born citizen because he was
born outside the United States on a U.S. military base in the Panama Canal Zone to
11
a U.S. citizen parent. Gabriel J. Chin, Why Senator John McCain Cannot Be
President: Eleven Months and a Hundred Yards Short of Citizenship, 107 MICH. L.
REV. First Impressions 1, app. A at 19-21 (2008). Governor George Romney’s
eligibility for the Presidency was also questioned because was born in Mexico to
U.S. citizen parents. Isidor Blum, Is Gov. George Romney Eligible to Be
President?, N.Y.L.J., Oct. 16, 1967, at 1. Aside from the “birther’s” belief that he
was not born in the United States, President Obama’s eligibility was challenged on
the basis that even if he was born in Hawaii, he was not a “natural born citizen”
because his father was not a U.S. citizen.
Charles Gordon, then the General Counsel of the United States
Immigration and Naturalization Service, attempted to answer this question. See
Charles Gordon, Who Can Be President of the United States: the Unresolved
Enigma, 28 MD. L. REV. 1 (1968). He followed the United States Supreme Court’s
suggestion that because “[t]he Constitution does not, in words, say who shall be
natural-born citizens[,] [r]esort must be had elsewhere,” namely to common law
existing at the time of the Founding Fathers to ascertain the meaning based on
reference to the nomenclature with which they were familiar. Minor v. Happersett,
88 U.S. 162, 167, 22 L. Ed. 627 (1874) (suggesting this approach to interpretation
but ultimately not reaching the issue).
Having surveyed most of the common law in effect at the time the
Constitution was adopted, as well as other historical, statutory, and constitutional
sources, Gordon concluded that:
12
1. The reference to “natural-born” in the
presidential qualification clause must be considered in
the light of the English usage, well known to the Framers
of the Constitution. The English common law,
particularly as it had been declared or modified by
statute, accorded full status as natural-born subjects to
persons born abroad to British subjects.
2. Although the evidence of intent is slender, it
seems likely that the natural-born qualification was
intended only to exclude those who were not born
American citizens, but acquired citizenship by
naturalization. The Framers were well aware of the need
to assure full citizenship rights to the children born to
American citizens in foreign countries. Their English
forebears had made certain that the rights of such
children were protected, and it is hardly likely that the
Framers intended to deal less generously with their own
children. The evidence, although not overwhelming,
unquestionably points in the direction of such generosity.
3. This gloss of prior history and usage is not
dulled, I believe, by the Naturalization Act of 1790 or by
the fourteenth amendment. The 1790 act, enacted soon
after the Constitutional Convention, recognized such
persons as natural-born citizens. The fourteenth
amendment, adopted primarily to confirm the full
citizenship denied to Negroes by the Dred Scott decision,
did not refer to “natural-born” citizens, did not purport to
limit or define the presidential qualification clause of the
Constitution, and did not, in my estimation, bar a
construction of that clause to include children born
abroad to American parents.
Gordon, supra, at 31-32. Gordon admitted, though, that the evidence for his
conclusion is not overwhelming, and that his research only “points in the direction”
of his ultimate conclusions. Id. at 32.
13
Recently, the Congressional Research Service (CRS)5 reached the
same conclusion in its January 2016 report,6 by which it updated its 2011 report
authored by Jack Maskell, entitled “Qualifications for President and the ‘Natural
Born’ Citizenship Eligibility Requirement.” JACK MASKELL, CONG. RESEARCH
SERV., R42097, QUALIFICATIONS FOR PRESIDENT AND THE “NATURAL BORN”
CITIZENSHIP ELIGIBILITY REQUIREMENT (2011). The original report was apparently
prompted by continuing questions regarding the meaning of the term “natural born
citizen” arising out of Senator McCain’s 2008 candidacy. It contains an exhaustive
analysis of the historical and legal background, both common law and statutory, on
this issue. The summary of that report states, in relevant part:
The term “natural born” citizen is not defined in
the Constitution, and there is no discussion of the term
evident in the notes of the Federal Convention of 1787.
The use of the phrase in the Constitution may have
derived from a suggestion in a letter from John Jay to
George Washington during the Convention expressing
concern about having the office of Commander-in-Chief
“devolve on, any but a natural born Citizen,” as there
were fears at that time about wealthy European
aristocracy or royalty coming to America, gaining
citizenship, and then buying and scheming their way to
the presidency without long-standing loyalty to the
nation. At the time of independence, and at the time of
the framing of the Constitution, the term “natural born”
5
The Congressional Research Service (CRS) is a legislative branch agency within the
Library of Congress which works exclusively for the United States Congress, providing policy
and legal analysis to committees and members of both the House and Senate.
6
JACK MASKELL, CONG. RESEARCH SERV., R42097, QUALIFICATIONS FOR PRESIDENT AND
THE “NATURAL BORN” CITIZENSHIP ELIGIBILITY REQUIREMENT (2016), available at
http://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-
Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016#scribd.
14
with respect to citizenship was in use for many years in
the American colonies, and then in the states, from
British common law and legal usage. Under the common
law principle of jus soli (law of the soil), persons born on
English soil, even of two alien parents, were “natural
born” subjects and, as noted by the Supreme Court, this
“same rule” was applicable in the American colonies and
“in the United States afterwards, and continued to prevail
under the Constitution . . .” with respect to citizens. In
textual constitutional analysis, it is understood that terms
used but not defined in the document must, as explained
by the Supreme Court, “be read in light of British
common law” since the Constitution is “framed in the
language of the English common law.”
In addition to historical and textual analysis,
numerous holdings and references in federal (and state)
cases for more than a century have clearly indicated that
those born in the United States and subject to its
jurisdiction (i.e., not born to foreign diplomats or
occupying military forces), even to alien parents, are
citizens “at birth” or “by birth,” and are “natural born,”
as opposed to “naturalized,” U.S. citizens. There is no
provision in the Constitution and no controlling
American case law to support a contention that the
citizenship of one’s parents governs the eligibility of a
native born U.S. citizen to be President.
Although the eligibility of native born U.S.
citizens has been settled law for more than a century,
there have been legitimate legal issues raised concerning
those born outside of the country to U.S. citizens. From
historical material and case law, it appears that the
common understanding of the term “natural born” in
England and in the American colonies in the 1700s may
have included both the strict common law meaning as
born in the territory (jus soli), as well as the statutory
laws adopted in England since at least 1350, which
included children born abroad to British fathers (jus
sanguinis, the law of descent).
15
The weight of legal and historical authority
indicates that the term “natural born” citizen would mean
a person who is entitled to U.S. citizenship “by birth” or
“at birth,” either by being born “in” the United States and
under its jurisdiction, even those born to alien parents; by
being born abroad to U.S. citizen-parents; or by being
born in other situations meeting legal requirements for
U.S. citizenship “at birth.” Such term, however, would
not include a person who was not a U.S. citizen by birth
or at birth, and who was thus born an “alien” required to
go through the legal process of “naturalization” to
become a U.S. citizen.
Id. at Summary (unnumbered).
Moreover, Paul Clement and Neal Katyal, both former Solicitor
Generals of the United States, arrived at the same conclusion in a more succinct
manner, determining that a U.S. citizen at birth is a natural born citizen and
constitutionally eligible to serve as President. Paul Clement & Neal Katyal, On the
Meaning of “Natural Born Citizen,” 128 HARV. L. REV. 161 (2015). They reason,
in relevant part:7
The Constitution directly addresses the minimum
qualifications necessary to serve as President. In addition
to requiring thirty-five years of age and fourteen years of
residency, the Constitution limits the presidency to “a
natural born Citizen.” [U.S. CONST. art. II, §1, cl. 5.]
All the sources routinely used to interpret the
Constitution confirm that the phrase “natural born
Citizen” has a specific meaning: namely, someone who
was a U.S. citizen at birth with no need to go through a
naturalization proceeding at some later time. And
7
For convenience, the citations contained in footnotes were placed in the body of the
text.
16
Congress has made equally clear from the time of the
framing of the Constitution to the current day that,
subject to certain residency requirements on the parents,
someone born to a U.S. citizen parent generally becomes
a U.S. citizen without regard to whether the birth takes
place in Canada, the Canal Zone, or the continental
United States. [See, e.g., 8 U.S.C. §1401(g) (2012);
Immigration and Nationality Act of 1952, Pub. L. No.
82-414, §303, 66 Stat. 163, 236-37; Act of May 24, 1934,
Pub. L. No. 73-250, 48 Stat. 797.]
While some constitutional issues are truly difficult,
with framing-era sources either nonexistent or
contradictory, here, the relevant materials clearly indicate
that a “natural born Citizen” means a citizen from birth
with no need to go through naturalization proceedings.
The Supreme Court has long recognized that two
particularly useful sources in understanding
constitutional terms are British common law [See Smith
v. Alabama, 124 U.S. 465, 478 (1888)] and enactments of
the First Congress. [See Wisconsin v. Pelican Ins. Co.,
127 U.S. 265, 297 (1888).] Both confirm that the
original meaning of the phrase “natural born Citizen”
includes persons born abroad who are citizens from birth
based on the citizenship of a parent.
As to the British practice, laws in force in the
1700s recognized that children born outside of the British
Empire to subjects of the Crown were subjects
themselves and explicitly used “natural born” to
encompass such children. [See United States v. Wong
Kim Ark, 169 U.S. 649, 655-72 (1898).] These statutes
provided that children born abroad to subjects of the
British Empire were “natural-born Subjects . . . to all
Intents, Constructions, and Purposes whatsoever.” [7
Ann., c. 5, §3 (1708); see also British Nationality Act,
1730, 4 Geo. 2, c. 21.] The Framers, of course, would
have been intimately familiar with these statutes and the
way they used terms like “natural born,” since the
statutes were binding law in the colonies before the
Revolutionary War. They were also well documented in
Blackstone’s Commentaries [See 1 WILLIAM
BLACKSTONE, COMMENTARIES *354-63], a text widely
17
circulated and read by the Framers and routinely invoked
in interpreting the Constitution.
No doubt informed by this longstanding tradition,
just three years after the drafting of the Constitution, the
First Congress established that children born abroad to
U.S. citizens were U.S. citizens at birth, and explicitly
recognized that such children were “natural born
Citizens.” The Naturalization Act of 1790, Ch. 3, 1 Stat.
103 (repealed 1795), provided that “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 . . . .” [Id. at 104 (emphasis omitted).] The actions
and understandings of the First Congress are particularly
persuasive because so many of the Framers of the
Constitution were also members of the First Congress.
That is particularly true in this instance, as eight of the
eleven members of the committee that proposed the
natural born eligibility requirement to the Convention
served in the First Congress and none objected to a
definition of “natural born Citizen” that included persons
born abroad to citizen parents. [See Christina S.
Lohman, Presidential Eligibility: The Meaning of the
Natural-Born Citizen Clause, 36 GONZ. L. REV. 349, 371
(2000/01).]
The proviso in the Naturalization Act of 1790
underscores that while the concept of “natural born
Citizen” has remained constant and plainly includes
someone who is a citizen from birth by descent without
the need to undergo naturalization proceedings, the
details of which individuals born abroad to a citizen
parent qualify as citizens from birth have changed. The
pre-Revolution British statutes sometimes focused on
paternity such that only children of citizen fathers were
granted citizenship at birth. [See, e.g., British Nationality
Act, 1730, 4 Geo. 2, c. 21.] The Naturalization Act of
1790 expanded the class of citizens at birth to include
children born abroad of citizen mothers as long as the
father had at least been resident in the United States at
18
some point. But Congress eliminated that differential
treatment of citizen mothers and fathers before any of the
potential candidates in the current presidential election
were born. Thus, in the relevant time period, and subject
to certain residency requirements, children born abroad
of a citizen parent were citizens from the moment of
birth, and thus are “natural born Citizens.”
The original meaning of “natural born Citizen”
also comports with what we know of the Framers’
purpose in including this language in the Constitution.
The phrase first appeared in the draft Constitution shortly
after George Washington received a letter from John Jay,
the future first Chief Justice of the United States,
suggesting:
[W]hether it would not be wise & seasonable to
provide a . . . strong check to the admission of
Foreigners into the administration of our national
Government; and to declare expressly that the
Command in chief of the american [sic] army shall
not be given to, nor devolve on, any but a natural
born Citizen.
[Letter from John Jay to George Washington (July 25,
1787), in 3 THE RECORDS OF THE FEDERAL CONVENTION
OF 1787.]
As recounted by Justice Joseph Story in his famous
Commentaries on the Constitution, the purpose of the
natural born Citizen clause was thus to “cut[] off all
chances for ambitious foreigners, who might otherwise
be intriguing for the office; and interpose[] a barrier
against those corrupt interferences of foreign
governments in executive elections.” [3 JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES §1473, at 333 (1833).] The Framers did not fear
such machinations from those who were U.S. citizens
from birth just because of the happenstance of a foreign
birthplace. Indeed, John Jay’s own children were born
abroad while he served on diplomatic assignments, and it
would be absurd to conclude that Jay proposed to exclude
19
his own children, as foreigners of dubious loyalty, from
presidential eligibility. [See Michael Nelson,
Constitutional Qualifications for President, 17
PRESIDENTIAL STUD. Q. 383, 396 (1987).]
While the field of candidates for the next
presidential election is still taking shape, at least one
potential candidate, Senator Ted Cruz, was born in a
Canadian hospital to a U.S. citizen mother. [See Monica
Langley, Ted Cruz, Invoking Reagan, Angers GOP
Colleagues But Wins Fans Elsewhere, WALL ST. J. (Apr.
18, 2014, 11:36 PM).] Despite the happenstance of a
birth across the border, there is no question that Senator
Cruz has been a citizen from birth and is thus a “natural
born Citizen” within the meaning of the Constitution.
Indeed, because his father had also been resident in the
United States, Senator Cruz would have been a “natural
born Citizen” even under the Naturalization Act of 1790.
****
There are plenty of serious issues to debate in the
upcoming presidential election cycle. The less time spent
dealing with specious objections to candidate eligibility,
the better. Fortunately, the Constitution is refreshingly
clear on these eligibility issues. To serve, an individual
must be at least thirty-five years old and a “natural born
Citizen.” Thirty-four and a half is not enough and, for
better or worse, a naturalized citizen cannot serve. But as
Congress has recognized since the Founding, a person
born abroad to a U.S. citizen parent is generally a U.S.
citizen from birth with no need for naturalization. And
the phrase “natural born Citizen” in the Constitution
encompasses all such citizens from birth. Thus, an
individual born to a U.S. citizen parent--whether in
California or Canada or the Canal Zone--is a U.S. citizen
from birth and is fully eligible to serve as President if the
people so choose.
Id. at 161-64.
20
Others have made the case that to be a natural born citizen under
Article II, Section 1, one must be born in the United States, except in certain
instances. Mary McManamon, Professor of Law at Widener University School of
Law, criticized the scholarship of those cited above and many more, citing
provisions of English common law, “statements by early American jurists,” and
selected passages from Blackstone, for the proposition that in the eyes of the
Framers, a presidential candidate must be born in the United States. Mary
McManamon, The Natural Born Citizen Clause as Originally Understood, 64
CATH. U. L. REV. 317, 343 (2015). She concludes that aside from children born to
U.S. ambassadors or soldiers in hostile armies, all natural-born citizens must be
born in the United States. Undoubtedly, this is a minority view among legal
scholars.
Having extensively reviewed all articles cited in this opinion, as well
as many others, this Court holds, consistent with the common law precedent and
statutory history, that a “natural born citizen” includes any person who is a United
States citizen from birth.
Accordingly, because he was a citizen of the United States from birth,
Ted Cruz is eligible to serve as President of the United States, and the objection
filed by Carmen Elliott to the Nomination Petition of Ted Cruz is denied.
_______________________________
DAN PELLEGRINI, Senior Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carmon Elliott, :
Petitioner :
:
v. : No. 77 M.D. 2016
:
Ted Cruz, :
Respondent :
ORDER
AND NOW, this 10th day of March, 2016, the petition to set aside
the nomination of Ted Cruz as a Candidate for the Republican Nomination for
President of the United States is denied. The Secretary of the Commonwealth is
directed to certify the name of Ted Cruz to the proper officials for inclusion on the
ballot of the Republican Primary to be held on April 26, 2016. Each party is to
bear its own costs.
_______________________________
DAN PELLEGRINI, Senior Judge