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04/14/2016

New Jersey Court Finds Cruz Eligible, Cites Originalism Blog
Michael Ramsey

Williams v. Cruz, per New Jersey Administrative Law Judge Jeffery Masin.  The conclusion:

As demonstrated above and in the thoughtful examinations of the scholars whose materials are mentioned herein, it must be acknowledged that the arguments against finding a child born outside the United States to a non-diplomat or non-military citizen of the United States are not facetious and the issue can never be entirely free of doubt, at least barring a definitive ruling of the United States Supreme Court. While absolute certainty as to this issue is only available to those who actually sat in Philadelphia and themselves thought on the issue, having weighed the arguments as they are presented by those trying to understand the Framers’ intent, I CONCLUDE that the more persuasive legal analysis is that such a child, born of a citizen-father, citizen mother, or both, is indeed a “natural born Citizen” within the contemplation of the Constitution. As such I CONCLUDE that Senator Cruz meets the Article II, Section I qualifications and is eligible to be nominated for President. His name may therefore appear on the New Jersey Republican primary ballot.

It's a long and thoughtful opinion that explores the academic scholarship and commentary on both sides.  And, yes, it does cite the Originalism Blog (and my draft article).  I believe this is the first time the Originalism Blog has been cited in a judicial opinion, so thank you, Judge Masin.  Also, this of course is my favorite line in the opinion: "Ramsey’s arguments are persuasive."  Hope that doesn't get overturned on appeal.

Thanks to William Rawle for the pointer -- he adds: 

Judge Masin is familiar with the subject of natural born citizen as he ruled in 2012 that President Obama was a natural born citizen.  That ruling is here.

I suspect his ruling in this case will be widely cited in future Cruz eligibility cases.
 
RELATED:  Sidney Allen Martin II (Sullivent Law Firm) has posted A Foreign Born Citizen is a Natural Born Citizen and Eligible to Be President: A Legalist View of the Constitution on SSRN.  Here is the abstract:
 
A natural born citizen is a person who is a citizen at birth by virtue of birth under the laws in effect at the time of birth as enacted by Congress pursuant to its power to make a uniform rule of naturalization. Neither British common nor statutory law is determinative although the First Congress generally followed the example of Parliament in extending natural born citizenship to the children born to American citizens in foreign countries. Under existing law, Ted Cruz was a natural born citizen as the time of his birth in Canada and is eligible to be President.
 
Interestingly, this study rejects my reliance on British practice and concludes that "The plain meaning of [the relevant constitutional clauses] taken together is that a person to be eligible to be President must be born a citizen under the immigration law in effect at the time of his birth."
 
ALSO:  Another possibly related source from Seth Barrett Tillman:
 
William Alexander Duer, Outlines of the Constitutional Jurisprudence of the United States§ 652, at 168 (New York, Collins and Hannay 1833):

All persons born out of the jurisdiction of the United States, are terms Aliens; but there are some exceptions to this rule, derived from the ancient English law; as in the case of children of public Ministers born abroad, whose parent owed not even a local allegiance to the foreign power; and all children born abroad of English parents, were considered as natives of England, if the father went and continued abroad in the character of an English subject.” (emphasis added)).

UPDATE:  At Volokh Conspiracy, Ilya Somin comments on the New Jersey ruling here.