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The Cruz – Rubio Eligibility Issue: The U.S. Constitution Relies on the Logic of Natural Right

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Over the weekend I read an article by Larry Klayman in which he asserts that, like Barack Obama, Ted Cruz and Marco Rubio are not “natural born” citizens of the United States; and are therefore ineligible to serve as President. He asserts that to satisfy the requirement both parents must have been U.S. Citizens at the time of birth. He cites the authority of the French thinker Emerich de Vattel to justify this conclusion. In point of fact, however, what Vattel says on the subject in his work on The Law of Nations is this:

Natural or indigenous [citizens] are those who are born in the country, of citizen parents. Since society cannot perpetuate itself except through the children of citizens, these children naturally follow the condition of their fathers, and enter into all their rights… (Para. 212)…By the law of nature alone, children follow the condition of their fathers, and enter into all their rights; the place of birth produces no change in this particular and cannot of itself furnish any reason for taking from a child what nature has given him; I say “of itself,” for civil or political laws may, for particular reasons, ordain otherwise (Para 215)….because a man’s country is the place where his parents lived at the term of his birth, or the State to which his father belonged at that time. (Para. 219). (My translation of the French language Kindle edition of the text, dated 1757.)

In line with this more accurate reading of Vattel, Thomas Lee, a Fordham University law professor, takes the view that “Jus sanguinis, or the law of blood…would have applied to that father’s place of birth in 1788.” Lee thus implies that America’s Founders would have upheld this practice of nations as evidence of the natural law.

But the notion that the father has, by nature, superior parental authority is rejected by John Locke in Chapter VI of his Second Treatise, a work known to have influenced the American Founders’ understanding that “all men are created equal”. This understanding, proclaimed in the Declaration of Independence, applies to all human beings, unless we accept the easily disproved notion that the use of the word “men” in the Declaration is a reference to gender rather than humanity. But this is obviously absurd, since it would not only strip women of all parental authority, it would strip them of any and all God endowed unalienable rights- a thought never seriously entertained at the time of the founding, or in any subsequent generation of Americans.

In the Second Treatise Locke finds fault with the use of the word “paternal” in reference to the human power to which children are naturally subject at birth: “…as this…seems so to place the power of parents over their children wholly in the father, as if the mother had no share in it; whereas, if we consult reason or revelation, we shall find she has an equal title. This may give one reason to ask whether this might not be more properly called ‘parental power,’ for whatever obligation nature and the right of generation lays on children, it must certainly bind them equally to both concurrent causes of it.”

Now, with reference to generation (i.e., the consequence of procreation) the word “obligation” refers, at its root, to bonds that inform and determine the characteristics that pass from one generation to the next. Given the scientific breakthroughs of the 20th century, we understand the nature of these bonds even more explicitly than ever before in human history.

Strands of DNA are literally the ladders whereby human offspring ascend to the heights of reason and self-consciousness, on account of which ascent human nature is thrown into sharp relief against the backdrop of nature as a whole. On the very human authority of the Frenchman Emerich de Vattel, Mr. Klayman wants us to accept the notion that males alone, by analogy with nature, have the authority to transmit the trait of citizenship to their offspring.

But given the explicit knowledge of the natural process that our science gives us, we are better informed than Mr. Vattel. That knowledge confirms John Locke’s sense of the equal parental authority of men and women. Which gender plays the dominant role in transmitting a natural trait has to do with a pattern that, in and of itself, gives neither parent a consistent claim to authority over any given child.

Of course, when we apply the standard of nature to citizenship we reason by analogy. The trait of citizenship must be present in both parents if the facts, empirically verified, confirm that this is nature’s way. Apart from that empirical verification, an individual’s citizenship in this or that nation is no more to be established by as analogy with nature than are the man-made boundaries that make one stretch of ground foreign to another, which lies adjacent to it.

Moreover, if we are to insist, contrary to the empirical evidence, that to be analogous with the natural standard both parents must possess the trait of citizenship, what is it that leads us to reject what our common usage has affirmed for centuries, which is the natural connection between human offspring and their biological parents, regardless of the tenets of human law? It’s why we recognize that biological offspring, even if illegitimate according to human legislation, are “natural children” of their biological parents. Is it right that the “natural children” of males be accepted as citizens, while the “natural children” of females are cast out?

That may have been consistent with the “law of nations” in times before the people of the United States successfully vindicated what our Founders called “the capacity of mankind for self-government”. But why should we, who are charged as citizens of the United States with perpetuating that success, be governed by the opinion of ages before it took place? And why, in the name of nature, should the natural children of either parent be deprived of the relation that both human usage and the empirical observation of nature join in affirming?

Mr. Klayman’s article tacitly ignores the fact that Vattel, whose authority he purports to rely upon, did not in fact accept the stricture that, to satisfy the natural law standard, both parents must be citizens. Be that as it may, the understanding of natural equality the American Founders proclaimed rationally upheld the people’s authority to govern themselves. It was guided by Locke’s rule of reason, not Vattel’s quiet submission to the prejudiced practices of human nations. In this respect, as in its ultimate success, the United States has been the exception to the rule that Grotius, Vattel and others, like Thomas Hobbes, relied on in their thinking. Ultimately, those natural lawyers upheld the standard of natural power, not the Declaration’s standard of God endowed natural right.

When even a staunch conservative like Mr. Klayman tacitly accepts what amounts to legal positivism as a substitute for natural law reasoning, it is clear that the crisis of America’s self-government is upon us. What is it we are supposed to conserve if not the constitution of republican self-government, predicated upon respect for the God-endowed unalienable rights of humanity? Unhappily, what makes Senator Cruz like Barack Obama is not, as Mr. Klayman alleges, that both are ineligible for the Presidency because of the Constitution’s “natural born citizen” requirement. It’s that neither has chosen to refute the allegation on the lawful grounds of natural right, the very grounds on which the United States is erected.

In a Marxist like Obama, this should not come as a surprise. But Mr. Cruz purports to be a champion of conservative moral causes (respect for the unalienable right to life, defense of the God-endowed natural family). In the American political realm, these causes depend, like the American republic itself, on the political salience of the logic of God-endowed natural right. The elitist faction’s systematic effort to efface that logic is the key to our nation’s present, increasingly fatal, malaise.

As we have seen throughout Obama’s tenure, the refusal conscientiously to apply that logic to the question of Obama’s eligibility signaled the beginning of a period of contemptuous disregard for the Constitution’s authority. This plainly foreseeable consequence was the reason people like myself risked ridicule and ostracism to demand, in words and legal action, that the issue of Obama’s eligibility be argued in substance, not casually dismissed. If there is no God endowed natural right, there are no rights government is morally obliged to respect. But once the appeal to God-endowed right is cut off, what recourse is left against the tyranny either of minority power or majority passion, but the appeal to arms?

Yet despite this dire consequence for our liberty and peace, Senator Cruz refuses to seize the opportunity, created by Donald Trump’s ignorant sniping, to set the “natural born citizen” issue in its right context. If he were the Founder-like statesman his supporters earnestly crave him to be he would boldly point to the fact that, with the natural born citizen requirement, the Framers of the Constitution made applying the logic of God-endowed natural right an indispensable prerequisite for executing the U.S. Constitution’s plan of government according to its terms. If he were doing so, Senator Cruz would not only shield himself from Donald Trump’s ignorant and/or malicious sniping. He would also foreshadow, by his conduct what his all too humanly legalistic responses so far have not, that his paramount ambition, like that of America’s Founders is to serve his country, not simply advance himself, or the elitist faction’s Godless agenda for power.



 

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