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08/27/2013

Is Ted Cruz a Natural Born Citizen? (Again, with Canons of Construction)
Michael Ramsey

At Balkinization, Sandy Levinson has this amusing post on the statutory aspects of the matter (with interesting twists and turns in the updates and comments).  And Garrett Epps has an interesting piece in The Atlantic on the English practice of naturalizing potential monarchs, which the framers wanted to avoid: Would the Founders Have Cared Where Ted Cruz Was Born?

I think Ted Cruz is a natural born citizen.  But it's a mystery to me why any one thinks it's an easy question.  Consider:

(1)  The argument is that anyone who is born a citizen is a natural born citizen.  But that's a questionable claim on its face, because it ignores the word "natural".  A purely textual reading would demand that there must be some "born citizens" who are not "natural" born citizens, or the word "natural" would be superfluous (violating the "Surplusage Canon," see Scalia & Garner, Reading Law, pp. 174-75).

(2) The argument is that Senator Cruz is a "natural born citizen" because a statute made him a citizen at birth.  The ordinary meaning of "natural" in this context is exactly to the contrary, however.  "Natural" means the opposite of "created by statute": for example, natural law versus statutory law; natural rights versus positive rights; natural person [an individual] versus legal person [a corporation or other entity].  So this view also violates the "Ordinary-Meaning canon" (Scalia & Garner, pp. 69-70).

(3)  As to history, it seems fairly clear that the original meaning of "natural born subject" (that is, what it first meant, though not necessarily what it meant in the eighteenth century) in English law was a person born within sovereign territory.  And a person in Senator Cruz's position (born abroad to a citizen mother and a non-citizen father) would not have been born an English subject even under eighteenth-century English statutory law, which gave natural-born-subject status to people born abroad whose fathers were English subjects.  (See Henry Henriques, The Law of Aliens and Naturalization, pp. 33-44).   Further, continental scholars such as Vattel, who thought a child's citizenship followed the citizenship of the parents rather than the place of birth, also thought it was the fathers' citizenship that mattered (Vattel, Law of Nations, book I, sec. 219 (referring to the "law of nature" as establishing this)).  Thus there is no supporting historical practice prior to 1789.

(4) Finally, the Senator's argument depends on a reading of the Constitution that allows Congress to make "natural born citizen" mean anything it wants; if Congress wants to make anyone born in Cuba a U.S. citizen to show its solidarity with the Cuban people, then indeed everyone born in Cuba would be a natural born citizen of the United States for presidential eligibility purposes.  That seems in tension with the idea of a constitutional eligibility requirement.

As I outlined earlier, I think there is a good argument that, nonetheless, Senator Cruz meets the constitutional definition of natural born citizen.  But it is surely not an obvious one.  It depends on the claim that "natural born" had by the late-eighteenth-century become a term of art meaning (contrary to what would seem to be its ordinary meaning) 'entitled to citizenship by whatever statute was in effect at time of the person's birth.'

For what its worth, on further reflection I think the 1790 Naturalization Act  strongly supports this view, as the enacting Congress seemed to think it was free to define "natural born citizen" to mean whatever it wanted at a level of great detail:

And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:  Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:  Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

As I described earlier, this approach is consistent with the eighteenth-century English parliament's view that it could define natural born subject as it pleased (and indeed could tinker with the definition for policy reasons).

In sum, I think -- contrary to the canons! -- "natural" really is surplusage used contrary to its ordinary meaning.  As Scalia and Garner themselves say, no canon is absolute.