Diary

Who is a natural born citizen? That's not a question a highly politicized court can or should decide.

Those who want the courts to decide the question: Who is a natural born citizen, qualified to hold the office of President of the United States? are, in this writer’s opinion, looking to the wrong branch to answer that question when they look to the courts.

The courts should have nothing to do with this issue. Nothing at all.

The relevant sentence in Article II, sect. 1 of the Constitution which states: “No person except a natural born citizen, or a citizen of the United States at the time of adoption of this constitution, shall be eligible to the office of president. . .” is an article of the U.S. Constitution, drafted and written by congress, and it is to congress that a sense of the congress must govern.

In short: it’s a political question that begs a consensus from congress. If the question gets to a court, the court should defer to the legislative branch, for the constitution gives the authority for determining citizenship to the congress, per Article I, sect. 8 of the Constitution.

To ask the courts to decide the question, is to ask the courts to exercise a legislative function that is not in their power to do. Indeed, unless there is a legislative history to the language that lends itself to two different interpretations, and a fair reading needs a third neutral arbiter to clarify the language, the courts have no right to create an interpretation of their own. In the latter case the courts would not be interpreting a law, but making law. Worse, they would be creating constitutional law out of whole cloth.

Unfortunately, the above scenario is something the courts have done with troubling regularity. Instead of avoiding such questions the courts have been only too willing to jump in and create laws that run exactly the opposite of what the law says. This is not this writer’s opinion alone, but it is shared by constitutional scholars who have written of and warned against judicial activism. See Prof. Charles Fried, Order & Law, Robert Bork, The Tempting of America. Contrast these writers’ concerns to those of former solicitor general under President John Kennedy, Archibald Cox, who wrote in his book, The Court and the Constitution, that courts need to be “creative” when interpreting laws. Great! Just what we need. And, of course, there is the recent case of the Supreme Court’s altering the very meaning of words to achieve a result the law specifically disavowed. Congress wrote, in the so-called Affordable Care Act, that the penalty they were imposing on those who failed to purchase health care was a penalty and not a tax. The Supreme Court “interpreted” the word to mean that a penalty means, tax. And voila, we got Obamacare.

We should be very reluctant to get a highly politicized court involved in question of another branch. And because of that, I would argue that we do not need a court to declare the obvious as Donald Trump mischievously and disingenuously suggest recently. He ought to really knock this crap off.

The constitution makes three distinctions with regard to the office: you must be (a) a natural born citizen; (b) a citizen of the United States; and (c) have attained the age f thirty-five.

Logic would suggest that a natural born citizen is a person born in the United States to American parents, whether those parents were born here themselves, or are citizens by virtue of being legally naturalized. The child is the product of American parents, not the state. So, the question must go to ascertaining the citizenship of the parents. If the parents are American citizens, their child is a citizen, too.

This interpretation comports with the Fourteenth Amendment’s: “All person’s born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

A citizen of the United States, on the other hand, not being naturally born here,  is a child born to American parents elsewhere. Again, the birthright of a child is the inheritance they receive from their parents, not the state. Who would argue that a child born to military parents, both Americans, living in Germany, for example, even if the child is born in a German hospital, is not an American citizen? You can’t rob the parents of the birthright of their child. Their son or daughter is a “citizen of the United States,” even if their birth certificate says born in Germany.

As for a child born to an American mother and foreign father, say, overseas, does not raise so much an Article II, sect. 1 question as it does a question of legal custody and dual citizenship.

The use of the comma after the words “or a citizen of the United States,” and before, “at the time of the adoption of  this constitution,” tells us that it is separate from, not part of, the second clause. Rather, “at the time of” refers to the status of a citizen in the two preceding clauses: natural born or a citizen in some other way.

Nonetheless, it is congress, not the courts that have jurisdiction to make this call, and Trump’s troublemaking to the contrary notwithstanding, and I like Trump, should not persuade any member of congress to yield the authority that is theirs, even though I am certain they will and the courts will be only too happy to make new law as they have done in the past.

What a mess. Here’s a simple solution: Ted Cruz is an American citizen. Period!

(This column is an edited version of  the original, with added discussion of the use of a comma.)