Senator Ted Cruz (R-Tex.) is not a natural-born citizen and therefore is not eligible to be president or vice president of the United States.
The Constitution provides that “No person
except a natural born Citizen . . . shall be eligible to
the Office of President.” 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.”
1.
Cruz is, of course, a U.S. citizen. As he was born in Canada, he
is not natural-born. His mother, however, is an American, and Congress has
provided by statute for the naturalization of children born abroad to citizens.
Because of the senator’s parentage, he did not have to follow the lengthy
naturalization process that aliens without American parents must undergo.
Instead, Cruz was naturalized at birth. This provision has not always been
available. For example, there were several decades in the 19th century when
children of Americans born abroad were not given automatic naturalization.
Some of
the Republican presidential candidates are going after Sen. Ted Cruz (R-Tex.),
saying his birthplace could count against him in a presidential election. Here
are the facts. (Sarah Parnass/
The
Washington Post)
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.
In this
election cycle, numerous pundits have declared that Cruz is eligible to be
president. They rely on a supposed consensus among legal experts. This notion
appears to emanate largely from a recent comment in the Harvard Law Review Forum by former
solicitors general Neal Katyal and Paul Clement. In trying to put the question
of who is a natural-born citizen to rest, however, the authors misunderstand,
misapply and ignore the relevant law.
First,
although Katyal and Clement correctly declare that the Supreme Court has
recognized that common law is useful to explain constitutional terms, they
ignore that law. Instead, they rely on three radical 18th-century British
statutes. While it is understandable for a layperson to make such a mistake, it
is unforgivable for two lawyers of such experience to equate the common law
with statutory law. The common law was unequivocal: Natural-born subjects had
to be born in English territory. The then-new statutes were a revolutionary
departure from that law.
Second,
the authors appropriately ask the question whether the Constitution includes
the common-law definition or the statutory approach. But they fail to examine
any U.S. sources for the answer. Instead, Katyal and Clement refer to the
brand-new British statutes as part of a “longstanding tradition” and conclude
that the framers followed that law because they “would have been intimately
familiar with these statutes.” But when one reviews 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, not the
newfangled British statutory approach.
Third,
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.
When discussing the
meaning of a constitutional term, it is important to go beyond secondary
sources and look to the law itself. And on this issue, the law is clear: The
framers of the Constitution required the president of the United States to be
born in the United States. SourceMary Brigid McManamon is a legal historian and constitutional law professor at Widener University’s Delaware Law School.
