The Constitution’s Week in Review

Week of January 16, 2016

January 18, 2016

Article 2, Section 1, Clause 5: Natural-Born Citizen

Ok, I’ve written on this before, but the controversy is apparently not going to go away until after November 2016 when we finally decide on our next President, and maybe not even then:  Is Ted Cruz a “Natural-born citizen” and thus eligible to be President (or is Marco Rubio, or was Barack Obama for that matter)?  Donald Trump continues to challenge Cruz’ insistence that he is, and this has brought out the “Constitutional experts” on both sides of the question.

I hate to burst anyone’s bubble, but the question is unanswerable without refinement: Is Ted Cruz a “Natural-born citizen” in the eyes of the Founders and the Constitution as ratified on 21 June 1788, or is he a “Natural-born citizen” in the eyes of today’s law?  The distinction is important; the “Founders’ Constitution,” as we affectionately term it, may have one view, and that view may have been eclipsed by (as yet unchallenged) statute law or precedent.

The first part of the question is simply unanswerable because the Founders did not bother to define the term when they wrote it into Article 2.  There was no effective debate.  Perhaps they wanted to keep us guessing (unlikely, but such has been the result of their failure to be more clear).  Or perhaps they thought the answer obvious and thus not requiring definition (which I think more likely).  Either way, a definitive, indisputable answer eludes us and forever will. 

Of the two candidates for the Founders’ view of the term that I discussed in my earlier essay, in my view Vattel’s definition satisfies the best: born within the country to two parents who were themselves citizens.  We know the Founders had multiple copies of Vattel’s book at the 1787 Convention, but they also had copies of Blackstone’s Commentaries, which views the subject somewhat differently.  I asked Senator Cruz in a recent telephone conference call what he thought of Vattel’s definition.  Knowing that his circumstances did not fit Vattel’s definition, he replied that international law (which was, of course, the subject of Vattel’s treatise) does not hold sway over the Constitution.  Cruz is right, of course, on the merits of the answer, but that doesn’t tell us whether it was Vattel’s definition the Founders had in mind.  They need not have invoked international law in order to make Vattel’s definition their own.  In speeches, Cruz answers repeatedly that he is a U.S. citizen by virtue of his mother’s citizenship, which is also correct, but which evades the NBC question.

As Wikipedia’s page shows vividly, over the years, Vattel’s very restrictive definition became decidedly relaxed and today’s consensus seems to suggest that only one parent need be a citizen and the subject can be born either within the country or on its foreign-situated property.

So, while I don’t think Ted Cruz satisfies the Founders’ NBC definition, until either the Court or Congress acts to put the question to ultimate rest, the answer will forever remain one of opinion, not fact.  Will it derail his run for the presidency? I don’t think so; nor should it.

Article 5

The issue of an Article V Convention, currently dividing conservatives nationwide, received three big endorsements this week:  Texas Governor Greg Abbott, probably as fed-up with Washington overreach as any governor could be, called for a convention, as did Presidential contender Senator Marco Rubio (actually Rubio’s endorsement occurred on 30 December but for some reason I didn’t see it until an interview with Glen Beck aired this week).  Finally, economist, author and syndicated columnist Thomas Sowell, lent his considerable intellectual heft to the project.

Citing the effective “reversal” of the 10th Amendment (in Abbott’s view, the federal government now retains all power it doesn’t deem to give to the states), Governor Abbott listed nine amendments he would like to see come out of such a convention.  While some of the proposed amendments would be radical departures from the current design of the Constitution (ex: empowering 2/3 of the states to override both federal legislation as well as Supreme Court decisions), others reflect a realization that the plain wording of the Constitution has been irrevocably transmogrified by Supreme Court decisions, and can only be corrected by amendment (ex: “Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.”  This seemingly unconstitutional delegation of legislative power was endorsed by the Court in Mistretta v. United States (1989)).  Not surprisingly, a call for a balanced budget amendment made the list, but there was also at least one idea that would probably not require an amendment: requiring “a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.”  This could probably be accomplished by statute law since setting rules for court majorities would seem to fall under Congress’ Article 3 authority.

While we could debate the merits of Abbott’s suggested amendments until the cows some home, at this point, this would be wasted breath; if we ever get close to having such a convention, ideas for amendments will come poring forth from every nook and cranny of the American polity. What is more important to note is that Texas, a state that has never shied away from the use of “nullification,” recognizes the limits of that strategy, and clearly sees some problems that can only realistically be addressed by amendment -- amendment that, equally clearly, will never be initiated by Congress.

Senator Rubio pointed out that he would actively lend his political leverage as President to the project.  In an interview with Glenn Beck, Rubio was quick to point out he was only endorsing the idea of a limited convention, one focused on “amendments that force fiscal responsibility in the form of a balanced budget amendment, limit the power and jurisdiction of the federal government, and hold Washington accountable by imposing term limits” echoing the criteria proposed by Convention of States Project.  Being the first Republican candidate to publically endorse an Article V convention was precedent-setting.  The Cruz campaign, however, was quick to point out that Senator Cruz supports the right of the states to pursue this method of creating change, and that the Senator views calls by the states for such a convention as a reflection of the level of distrust that has been created over the years by a federal government oblivious to the issues of the states.

Finally, adding considerable intellectual weight to the subject, on Monday, 11 January, economist and author Thomas Sowell issued a similar endorsement.  Citing the Left’s “vehement” opposition to the idea (something conservatives opposed to a convention seem to have missed), Sowell declared: “The irony in all this is that no one has messed with the Constitution more or longer than the political left, over the past hundred years.”  He is absolutely right.

In Sowell’s view, a convention would “restore constitutional protections that have been surreptitiously eroded by unelected federal judges and by unelected bureaucrats in administrative agencies, who create a major part of ‘the law of the land,’ with the help of ‘deference’ from federal judges.”

Three big endorsements of an Article V convention by powerful political leaders -- a great week for Convention of States proponents.

Eighth Amendment.

The U.S. Supreme Court struck down Florida's death penalty law Tuesday, declaring it unconstitutional because it does not require that a jury make the life or death decision.

"The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough," Justice Sonia Sotomayor wrote for the majority.  Oh really?  The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”  I’m sure Sotomeyer explains her logic in the opinion, which I haven’t had time to track down, but on the surface, I just don’t see how the 6th requires the jury participate in sentencing, only in handing down a verdict.

The “Constitution’s Week in Review” is a project of the Constitution Leadership Initiative, Inc. 


Copyright ©2016

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. In addition to writing "The Constitution's Week in Review" at, he writes regularly for the Fairfax Free Citizen of Fairfax Virginia. Mr. Porter also teaches at various locations, as well as hosting a weekly radio broadcast ("The Constitution Matters"). The program can also be heard live on the Internet every Friday morning at 
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