Harvard Law Review Article FAILS to Establish #TedCruz as Natural Born Citizen #tcot #tpot #2A

I really appreciate the scholarship undertaken by Mario Puzzo, Esq., on the issue of what constitutes “natural born citizenship”–including his refreshing analysis and conclusion that Rick Santorum IS a natural born citizen while many other potential GOP presidential candidates are NOT eligible natural born citizens.  In particular, conservative pundits have shamefully and foolishly come to Ted Cruz’ rescue lately with a lot of name-calling but little in the way of substantive analysis.  An example of very recent vintage is The Blaze’s promotion of this article in Harvard Law Review, to which Puzzo very capably responds:

I read the March 11, 2015 article entitled, “On the Meaning of a ‘Natural Born Citizen,” written by Neal Katyal and Paul Clement, found at 128 Harv.L.Rev.F 161, and accessed at http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/ .  The first sentence of the article says:  “We have both had the privilege of heading the Office of the Solicitor General.”  The article repeats the existing talking points offered in support of the constitutional eligibility of Senator Ted Cruz (all born citizens are natural born citizens) and offers nothing new.  Mr. Cruz was born in Canada to a U.S. citizen mother and a non-U.S. citizen (Cuban) father.  I have written a recent article in which I conclude that Mr. Cruz is not a natural born citizen and therefore not eligible to be President because he does not satisfy the one and only common law definition of a natural born citizen confirmed by the unanimous U.S. Supreme Court in Minor v. Happersett, 88 U.S. 162 (1875), which is a child born in a country to parents who were its citizens at the time of the child’s birth.  The article is entitled, “What Do President Obama and Senator Cruz Have In Common? They Are Both Not Natural Born Citizens,” accessed at http://puzo1.blogspot.com/2015/02/what-do-president-obama-and-senator.html .  Katyal and Clement maintain that any child who becomes a citizen at birth, regardless of where born or by what means, is a natural born citizen.  They add that since Mr. Cruz became a citizen from the moment of birth and did not need any naturalization after birth he is a natural born citizen.  But there is no historical and legal evidence which demonstrates that this is how the Framers defined a natural born citizen and the authors surely have not presented that evidence even if it did exist. 
The authors’ argument suffers from the fallacy of bald assertion.  They provide no convincing evidence for their position on who is included as an Article II natural born citizen.  They do not examine what was the source of the Framers’ definition of an Article II natural born citizen, let alone what was the definition of a natural born citizen when the Framers drafted and adopted the Constitution and when it was eventually ratified.  They ignore so much of the historical and legal record in coming to their bald conclusions. For a discussion of this historical and legal evidence, see the numerous articles that I have written and posted at my blog, http://puzo1.blogspot.com .

Read Puzzo’s full response here (mandatory reading!!):
A Response to Neil Katyal and Paul Clement on the Meaning of a Natural Born Citizen.

Notice how skimpy the ten-paragraph Harvard Law Review article is–coincidentally, the same number of paragraphs as the skimpy piece by Cato Institute’s Ilya Shapiro, upon which Mark Levin predicated his name-calling rant against so-called “birthers”; in fact, the issue of natural born citizenship has less to do with place of birth than citizenship of the parents (in particular, the father), and anyone using “birthers” as a pejorative is either clueless about the real issue, or setting up a straw man because they have no way to counter the real argument.  At least Shapiro admits bias in terms of being Canadian and a friend of Cruz.  Any regular listener of Levin’s (me included) knows that Levin is also a friend and longtime supporter of Ted Cruz.

The law review article was written by two former solicitors general and Mark Levin is rightfully respected as a constitutional lawyer and scholar, yet when you look for substantive analysis, there’s no “there” there.  Why?  Because these guys are friends of Ted Cruz, and/or they do not trust in the grassroots’ ability to properly analyze this issue.  And to some extent they are right.  I know many good conservatives who are lazy on this issue (probably because they are treading water on so many other issues, God help us) and just point to commentary by experts such as Levin without demanding more.

Even loyal listeners need to insist that Levin engage in some serious, lawyerly research before again  name-calling dissenters as “birthers” and “kooks”–otherwise, “SHUT UP YA DUMB JERK!” (as he at times ends calls).  Lacking good arguments, these pundits prefer to engage in polemics laced with ridicule–a harbinger of the discord risked if Cruz were to actually be nominated.

The point is not how a court would actually rule on this issue–the point is that real arguments can be made against Cruz’ eligibility, and the resulting discord will render the grassroots as impotent as nominating a moderate.  Better to have that discussion prior to nomination.


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