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Who are you going to believe? A former Solicitor General/former Acting Solicitor General or some random guy on the Internet? /Updated

Posted by Charles II on December 22, 2015

Scott Rohter is a Tea Party guy. His full bio state that his accomplishments in life are: “being a property rights activist since 1995” and writing articles for such noted law journals as Free Republic and Red State. It’s really quite an extraordinary life!  Which, in his own mind, qualifies him to interpret the Constitution.

And so, he states with full conviction:

The United States Constitution says that you have to be a Natural Born Citizen to be the President of the United States.  That means that you have to be born in the United States in order to be the President of the United States.  That just seems like common sense to me…  the kind of common sense that our Founding Fathers had plenty of.  It is also the kind of common sense that makes perfect sense in the dangerous world that we live in today.

There is no definition listed in the Constitution for what it means to be a Natural Born Citizen, but the Founding Fathers knew exactly what it meant.

This is because he personally knew the Founding Fathers, I guess. At any rate, he quotes as his authority The Law of Nations by Emerich [sic; it’s actually Emmerich, and also written Emer] de Vattel. de Vattel is of course the best source to cite because (a) he was Swiss, and (b) he died in 1767, well before the writing of the Constitution. The fact that the American Supreme Court has considered the issue, and despite the fact that in making rulings about the law they reviewed the proceedings of the Founders, it doesn’t count because:

The definition of what it means to be a Natural Born Citizen has been vigorously debated over the centuries and thanks to recent Supreme Court decisions it has been watered down by progressive judges to the point that it means just about anything they want it to mean.

Well, if by “recent,” you mean the Naturalization Act of 1790 and Supreme Court decisions from the 19th century, yeah, I guess if you make “recent” mean anything you want it to, then sure, Mr. Rohter’s ascension to the Higher-than-Supreme Court of the United States makes sense.

On the other hand, you could look at the work of a former Bush Solicitor General and a former Obama Acting Solicitor General, both now distinguished law professors at Georgetown who write in the Harvard Law Review:

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 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.

The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law
and enactments of the First Congress.

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.

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, a text widely 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 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 . . . .”

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.

Rohter can’t even be called a liar or a fool, because he clearly inhabits some alternate reality where facts and history and reason bend to fit his prejudices. But of course, he call call people he disagree with liars and fools at will, because nothing matters except his opinion.

Arrogance will destroy this country. As we see in Iraq and Afghanistan, Libya and Syria, the Ukraine and the Bakken, Ferguson and Baltimore, it is already well underway. We’re all so d–ned sure of ourselves that we can’t take the time to look and listen.
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Update: It turns out the the case is not cut-and-dried. Mary Brigid McManamon written a piece in the WaPo describing her research on the topic:

First, although Katyal and Clement correctly declare that the Supreme Court has recognized that common law is useful to explain constitutional terms, they ignore that law. Instead, they rely on three radical 18th-century British statutes. While it is understandable for a layperson to make such a mistake, it is unforgivable for two lawyers of such experience to equate the common law with statutory law. The common law was unequivocal: Natural-born subjects had to be born in English territory. The then-new statutes were a revolutionary departure from that law.

Second, the authors appropriately ask the question whether the Constitution includes the common-law definition or the statutory approach. But they fail to examine any U.S. sources for the answer. Instead, Katyal and Clement refer to the brand-new British statutes as part of a “longstanding tradition” and conclude that the framers followed that law because they “would have been intimately familiar with these statutes.” But when one reviews all the relevant American writings of the early period, including congressional debates, well-respected treatises and Supreme Court precedent, it becomes clear that the common-law definition was accepted in the United States, not the newfangled British statutory approach.

Third, Katyal and Clement put much weight on the first U.S. naturalization statute, enacted in 1790. Because it contains the phrase “natural born,” they infer that such citizens must include children born abroad to American parents. The first Congress, however, had no such intent. The debates on the matter reveal that the congressmen were aware that such children were not citizens and had to be naturalized; hence, Congress enacted a statute to provide for them. Moreover, that statute did not say the children were natural born, only that they should “be considered as” such. Finally, as soon as Madison, then a member of Congress, was assigned to redraft the statute in 1795, he deleted the phrase “natural born,” and it has never reappeared in a naturalization statute.

So,it’s not settled law. I don’t think McManamon’s view would prevail simply because it creates complications that the Supreme Court would avoid by defining away “natural born.” Otherwise we have two classes of citizen with different rights. What other rights are to be denied those not “natural born”? On what possible rational basis? But I will have to say: Scott Rohter might be right… even if it’s totally by accident. Only the Supreme Court can say for sure.

2 Responses to “Who are you going to believe? A former Solicitor General/former Acting Solicitor General or some random guy on the Internet? /Updated”

  1. Shirt said

    “…the right of citizenship shall not descend to persons whose fathers have never been resident in the United States…” Wasn’t Ted’s dad a Cuban living in Canada at the time?

    • Charles II said

      According to Clement and Katyal, the Congress subsequently eliminated that requirement. But even so, Cruz’s father studied, worked, and preached in the US. He is now a naturalized citizen. Rohter tries to claim that neither Cruz nor Obama qualify to run for president. Unsurprisingly, he is wrong.

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