Sen. Cruz is an Unnaturally Born Citizen

January 28, 2016

by Jay Marshall Wolman

Despair thy charm,
And let the angel whom thou still hast served
Tell thee, Macduff was from his mother’s womb
Untimely ripped.
-Macbeth, Act V, Scene 8
There’s been a lot of talk lately over whether Senator Cruz is eligible to the office of President.  The Constitution requires that the President be a “natural born” citizen.  Article II, Sec. 1, Cl. 5.  Folks have made a lot of originalist/textualist type arguments to help understand this clause.
I want to weigh in from a similar perspective, but one that I think can help frame the discussion.  Two former Solicitors General basically referred first to English statutes in effect at the time of the Revolution and then the Naturalization Act of 1790 to support their understanding that foreign born subjects of citizens are naturally born.  The problem, though, is that does not tell us what the term meant in 1787 under the common law.
If English statutes were imported, the Naturalization Act of 1790 would have been unnecessary.  Presumably, the Framers, the same folks who wrote the Constitution three years earlier, thought it necessary as those born abroad would not otherwise be citizens from birth. OK, so if Ted Cruz was born in Canada in 1788, he would not have been a citizen from birth.  Similarly, we can imagine a scenario where a xenophobic Congress never adopts any naturalization laws.  In that case, when Ted Cruz was born in 1970, there didn’t have to be laws on the books that would have made him a citizen, let alone from birth, and everyone would agree he would not be eligible to the office of President. [More realistically, immigration laws can contain sunset provisions, so we can imagine that citizenship to those born abroad could sunset the day before he was born and emergency legislation enacted the day after restoring the provision.  During that one sunsetted day, Mr. Cruz would not have been an American.]
The question then becomes, can Congress enact a law that makes someone Constitutionally eligible if they otherwise would not be?  Let’s look at the whole clause:
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.
Congress also has the power to “fix the standard of weights and measures”.  Art. I, Sec. 8, Cl. 4.  Can Congress redefine the word “year” (a measure of time) as something other than 365 (1/4) days to make it so, perhaps, you might not be eligible until the Earth goes around the sun 70 times rather than 35?  It can redefine the word for any purpose, except a Constitutional one.  That would require an Amendment as it would alter the meaning of the word “Year” from what it was in 1787.  So why is “natural born” any different?
If you believe Congress can pass a law that changes the meaning of the Constitution (without express authority to do so, such as the ability to add a state, thus altering the meaning of “within the United States”), then Sen. Cruz is eligible.  Otherwise, no.

The Seventh Amendment Calculator

December 3, 2015

by Jay Marshall Wolman

There is an interesting financial quirk in the Bill of Rights.  The Seventh Amendment states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

As some of you may know, the Bill of Rights does not automatically apply to the States; particular clauses are individually held to be incorporated into the Due Process Clause of the 14th Amendment.  This is why, until only recently, the 2nd Amendment was not deemed to restrict a State’s ability to regulate firearms.  See McDonald v. Chicago, 561 U.S. 742 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).  In fact, nearly 100 years ago, the 7th Amendment was held not to apply to the States.  See  Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 36 S. Ct. 595, 60 L. Ed. 961 (1916).  

This past August, the 1st Circuit Court of Appeals explicitly rejected a ruling by the U.S. District Court for the District of Puerto Rico incorporating the 7th Amendment.  See González-Oyarzun v. Caribbean City Builders, Inc., 798 F.3d 26 (1st Cir. 2015).   González-Oyarzun involved a claim under the Age Discrimination in Employment Act matter; suit was filed in Federal court, but the employer sought to enforce a forum selection clause requiring it be brought in Commonwealth courts.  However, Puerto Rican Commonwealth courts do not enjoy a right to a jury trial in civil disputes, causing the Federal Court to pass on the constitutionality.  The First Circuit disagreed with the District Court based largely on stare decisis and disagreed with the interpretation as to whether McDonald opened the door for the 7th Amendment.  Unfortunately, it does not appear that there was a petition for a writ of certiorari or request for en banc rehearing filed and the time for both has expired.

The District Court decision gave considerable discussion to the Twenty Dollar clause and its impact on small claims cases.  It was troubled by the fact that such a low threshold for a jury demand undermined the efficiency and policies behind a state small claims court.  [Federally, all claims under Federal law in excess of $20 are tried to a jury; claims in diversity are subject to a $75,000 jurisdictional requirement and are unaffected by the clause.]  However, I believe the clause has been misread.

Twenty dollars today is not the same as twenty dollars on Dec. 15, 1791, when the amendment was ratified.  The Coinage Act of 1792 memorialized the definition of the dollar as understood at the time and used since independence:

DOLLARS OR UNITS–each to be of the value of a Spanish milled dollar as the same is now current, and to contain three hundred and twenty-one grains and four sixteenth parts of a grain of pure, or four hundred and sixteen grains of standard silver.

Fiat money was not introduced until much later.  Thus, I would suggest that $20 in the 7th Amendment is not $20 today, nor is it what an inflation calculator might suggest (which, according to this site is about $275 in today’s money).  Instead, it should be equal to 20 * 321.25 grains of pure silver, which is 6,425 grains of pure silver.

As of the time of writing, the value of $20, being equal to 6,425 grains of pure silver, at the time of the 7th Amendment, would have a market value of $188.20 according to this site.  [Under the record high for silver, on Jan. 18, 1980, it would be $661.91.  More recently, on Sept. 2, 2011, it was $575.84.] In the last 12 months, it has hovered around $200.  Likely, then, a State could still approximate it at $200 and require non-jury small claims cases below that threshold.

Of course, then, this calls into question the filing fees for traditional jury claims, which typically well exceed $200.  But that barrier is for another day.


News Flash – California Supreme Court to Consider Constitutionality of Prop 8

November 19, 2008

Just over an hour ago, the California Supreme Court issued an order stating that it will hear the challenge to the consitutionality of Proposition 8, the ballot measure banning same-sex marriage in California which was approved by voters in this month’s election.

The issues to be heard by the Court are:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 14.)

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Briefs are set to be filed in January 2009.