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05/06/2013

Is Ted Cruz a Natural Born Citizen?
Michael Ramsey

At The Atlantic, David A. Graham says Yes, Ted Cruz Can Be Born in Canada and Still Become President of the U.S. (because his mother was a U.S. citizen when he was born):

In short, the Constitution says that the president must be a natural-born citizen. "The weight of scholarly legal and historical opinion appears to support the notion that 'natural born Citizen' means one who is entitled under the Constitution or laws of the United States to U.S. citizenship 'at birth' or 'by birth,' including any child born 'in' the United States, the children of United States citizens born abroad, and those born abroad of one citizen parents who has met U.S. residency requirements," the [Congressional Research Service]'s Jack Maskell wrote.

(Via Peter Robinson at Ricochet)

That's probably correct as an original matter.  "Natural born" can be reasonably understood as the opposite of "naturalized," (also a constitutional phrase, from Congress' power "to establish a uniform Rule of Naturalization"),  and Senator Cruz was (by statute) a citizen at birth.  And there's a sensible underlying policy: a citizen at birth, unlike someone who has been naturalized, is less likely to feel a prior allegiance to a foreign power.

But I'm not sure it's as clear as Graham claims.  In his classic article Originalism and the Natural Born Citizen Clause, Lawrence Solum doesn't find the argument entirely conclusive.  The counterargument is that (as Professor Solum suggests) the constitutional phrase refers to people who would be citizens according to the traditional English common law view of who were "natural born subjects."  Congress could presumably extend citizenship beyond the traditional boundaries to those who were not common law citizens, but these people would be in effect "naturalized" at birth by statute rather than being "natural" born (that is, citizens by the law of nature).

The relevant discussion in Blackstone's Commentaries is Book I, Ch. 10, and its implications are not obvious.  According to Blackstone, the traditional rule was that "[n]atural born subjects are such as are born within the dominions of the crown of England."  But he further noted that a series of statutes (some fairly recent) had had extended the rule such that "all children, born out of the king's ligeance [i.e., abroad], whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes ..."

So does this mean (a) that (at most) people born abroad whose fathers are natural born citizens are themselves natural born citizens [which doesn't include Senator Cruz] or (b) that the legislature can at will redefine the category of "natural born citizen" by statute? 

Blackstone's discussion seems to show that someone in Cruz's position (born abroad to a citizen mother and non-citizen father) would not have been a "natural born subject" of England in the eighteenth century.  But I think (b) is still the correct answer.  Blackstone's discussion of the laws (7 Ann. c.5 and 4 Geo. II c. 21) extending subject status indicates that as general matter those who are subjects at birth by the operation of recent statutes were called "natural born" even if they weren't within the traditional category of natural born subjects.  Presumably that would also be true of people whom future statutes made subjects at birth.  Thus ultimately I think Graham is right, but it's not as easy a question as some people think.

UPDATE:  Noam Scheiber has this somewhat unfair post at The New Republic:  Meet the Most Important Ted Cruz Birther: Ted Cruz.  Ted Cruz is eligible to be president under almost any reading of the Constitution—except his own.  The point appears to be that Cruz' eligibility is obvious under a living constitution approach (relying heavily on Professor Peter Spiro of Temple Law School and Opinio Juris) but that the question is harder for originalists and Cruz has proclaimed himself an originalist.

I agree with this as far as it goes (see above), but Scheiber doesn't present any analysis whatsoever on the Constitution's original meaning.  While that meaning isn't crystal clear, even my quick review of Blackstone suggests that there's a good argument in Cruz' favor.  Scheiber heavily implies that Cruz is being disingenuous, but I see no evidence of that.