Natural Born Requirement Means Ted Cruz Is Probably Ineligible
Mary Brigid McManamon wrote a very convincing op-ed that Ted Cruz is not a natural born citizen and is thus ineligible to be President. I think she’s right. The only reason I say think is because no one knows how, or even if, a court would rule on the matter.
I had trepidation even broaching this topic, for if there was ever anyone mocking “birthers”, it was yours truly. I can’t ignore the Constitution, common law, and what sources within the United States at the time of founding had to say about the true meaning of natural born citizenship.
The concept of “natural born” comes from common law, and it is that law the Supreme Court has said we must turn to for the concept’s definition. On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are “such as are born within the dominions of the crown of England,” while aliens are “such as are born out of it.” The key to this division is the assumption of allegiance to one’s country of birth. The Americans who drafted the Constitution adopted this principle for the United States. James Madison, known as the “father of the Constitution,” stated, “It is an established maxim that birth is a criterion of allegiance. . . . [And] place is the most certain criterion; it is what applies in the United States.”
Her argument is essentially that Cruz can’t be natural born because he was born in Canada, a sovereign state that is not apart of the United States. Because Congress provided for naturalization by birth for children born to American citizens abroad by passing 8 USC 1401 (g), Cruz didn’t have to go through the long naturalization process that children born to non-citizen parents had to go through. If he had been born in the 19th century before Congress passed that law, he would’ve had to have gone through such a naturalization in order to become a citizen.
Article I of the Constitution grants Congress the power to naturalize an alien — that is, Congress may remove an alien’s legal disabilities, such as not being allowed to vote. But Article II of the Constitution expressly adopts the legal status of the natural-born citizen and requires that a president possess that status. However we feel about allowing naturalized immigrants to reach for the stars, the Constitution must be amended before one of them can attain the office of president. Congress simply does not have the power to convert someone born outside the United States into a natural-born citizen.
What About Harvard?
Former United States Solicitor General Paul Clement and former Acting Solicitor General Neal Katyal affirmed Cruz’s natural born status in the Harvard Law Review Forum. McManamon says they’re wrong for relying on British statutory law instead of common law to explain a constitutional term such as natural born while acknowledging that common law is what the Supreme Court would rely on. The common law was unequivocal: Natural-born subjects had to be born in English territory. The then-new (British) statutes were a revolutionary departure from that law.
Also, when trying to answer the question of whether the Constitution includes the common law definition or the statutory approach, McManamon says Clement and Katyal rely on the same British statutes while failing to examine U.S. sources. When reviewing all the relevant American writings of the early period, including congressional debates, well-respected treatises and Supreme Court precedent, it becomes clear that the common-law definition was accepted in the United States, and not the newfangled British statutory approach.
There is yet another reason McManamon says their wrong, and she explains it beautifully:
Katyal and Clement put much weight on the first U.S. naturalization statute, enacted in 1790. Because it contains the phrase “natural born,” they infer that such citizens must include children born abroad to American parents. The first Congress, however, had no such intent. The debates on the matter reveal that the congressmen were aware that such children were not citizens and had to be naturalized; hence, Congress enacted a statute to provide for them. Moreover, that statute did not say the children were natural born, only that they should “be considered as” such. Finally, as soon as Madison, then a member of Congress, was assigned to redraft the statute in 1795, he deleted the phrase “natural born,” and it has never reappeared in a naturalization statute.
What About Debbie?
DNC Chairwoman Debbie Wasserman Schultz recently stated that Ted Cruz was natural born citing the 14th amendment. This does not help Ted Cruz.
In fact, if I were constructing an argument against Cruz’s eligibility, I’d base it on the 14th Amendment’s description of citizens “born or naturalized in the United States, which could be read as establishing two classes of citizens – those born in the United States and those naturalized in the United States.
What About Me?
I am on the record stating:
Ted Cruz was probably a U.S. citizen from birth. His mother, Eleanor Darragh, was a U.S. citizen, born in 1934. Ted Cruz was born in 1970; his mother was 36 when she gave birth to him. Under the law, for births that take place outside the United States between December 24, 1952 and November 13, 1986, one U.S. parent “must have lived in the United States for at least ten years, with five of those years occurring after he or she was 14 years old.” Darragh had lived in the United States for more than ten years and five of those years had occurred after age 14. If you are United States citizen from birth, you are a natural-born citizen – no naturalization is required.
Well I was right and wrong. While naturalization was conferred to Senator Cruz upon his birth to his American mother, this did not make him a natural born citizen. It just means he was naturalized at birth and did not have to go through a naturalization process to become a citizen.
Who’s Natural Born and Who’s Not?
It should be noted that you would have to have standing to challenge any of these candidates citizenship requirements. Those who would have standing would probably be other candidates. President Obama, John McCain, Barry Goldwater and George Romney all present interesting cases.
He was born within the United States. He is a natural born citizen of the United States. Senator Cruz was born in Canada. He was a naturalized citizen of the United States at birth.
He was born in 1936 at Coco Solo Naval Air Station in the Panama Canal Zone. The former unincorporated territory of the Panama Canal Zone and its related military facilities were not regarded as United States territory at the time, but 8 U.S.C. § 1403, which became law in 1937, retroactively conferred citizenship on individuals born within the Canal Zone on or after February 26, 1904, and on individuals born in the Republic of Panama on or after that date who had at least one U.S. citizen parent employed by the U.S. government or the Panama Railway Company. In April 2008, the U.S. Senate approved a non-binding resolution recognizing McCain’s status as a natural-born citizen.
A non-binding resolution cannot progress into a law. It was used then to express Congress’ approval of McCain’s status as a natural born citizen, something they thought they couldn’t vote on for it’s the Supreme Court’s jurisdiction to determine how “natural born” is protected by the Constitution. McCain has a stronger case than Cruz, but it’s still no for the statute giving him citizenship status was just naturalization upon birth similar to Cruz.
Barry Goldwater was born in Phoenix, in what was then the incorporated Arizona Territory of the United States. He is a natural born citizen of the United States as he was born in a U.S. territory. Ted Cruz was born in Canada. He was a naturalized citizen of the United States at birth.
George Romney (Mitt’s dad) ran for the Republican party presidential nomination in 1968. He was born in Mexico to U.S. parents. Romney’s grandfather had emigrated to Mexico in 1886 with his three wives and children after the U.S. federal government outlawed polygamy. Romney’s monogamous parents retained their U.S. citizenship and returned to the United States with him in 1912. He has a stronger case than Cruz as both of his parents were citizens, but being born in Mexico means he was not a natural born citizen as Mexico is a sovereign nation.
Again, the Constitution does not define the phrase natural-born citizen, and various opinions have been offered over time regarding its precise meaning. The Supreme Court has never directly addressed the question of a specific presidential or vice-presidential candidate’s eligibility as a natural-born citizen.
The precise meaning of the natural-born-citizen clause may never be decided by courts because, in the end, it may be a nonjusticiable political question that can only be decided by the legislative branch rather than the judicial branch of government. That means amending the constitution.