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09/27/2013

Andrew Hyman on Natural Born Citizens
Michael Ramsey

Andrew Hyman writes:

I've noticed some discussion recently (http://originalismblog.typepad.com/the-originalism-blog/2013/08/is-ted-cruz-a-natural-born-citizen-againmichael-ramsey.html) about whether Ted Cruz would be eligible for the presidency, given that he was born in Canada, and only his mother was then a U.S. citizen.  My answer is "yes" (though that's not an endorsement!).

To understand what a "natural born citizen" is under the U.S. Constitution, it seems like four texts are essential.  First, consider this British statute of 1708:

"The children of all natural born subjects born out of the ligeance [i.e. allegiance] of Her Majesty Her Heirs and Successors shall be deemed and adjudged to be natural born subjects of this Kingdom to all intents, constructions, and purposes whatsoever."

Second, consider this British Statute of 1730:

"[A]ll Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively, shall and may, by virtue of the said recited Clause in the said Act of the seventh Year of the Reign of her said late Majesty [i.e. 1708], and of this present Act, be adjudged and taken to be, and all such Children are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever."

The third text is the U.S. Constitution of 1789:

"No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."

And, the fourth text is this U.S. statute of 1790:

"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."

Looking at these four texts, some conclusions are obvious.  First and foremost, you don't have to be born in the United States to be a "natural born citizen"; that is clear from both the 1708 and 1730 Acts.  Second, the 1730 statute required that the father rather than the mother had to be a citizen in order to convey natural born citizenship to a child born abroad, but both the Constitution and the 1790 Act tellingly avoided such a requirement.  Third, the words "natural born citizen" in the Constitution do not, by themselves, seem to suggest anything about gender.  And, lastly, the four words "of the United States" in the constitutional clause do not refer to the words "natural born citizen" in that same clause, which strongly suggests that the word "natural" serves a similar function to those four words ("of the United States"); indeed, an archaic meaning of the word "natural" is "native".

http://books.google.com/books?id=jjNAAAAAYAAJ&pg=PT13

An interesting hypothetical (suggested by Mike Ramsey) is that Congress declares everyone henceforth born in Cuba to be a citizen of the United States from birth.  So would that mean each of them would be qualified to one day become President of the United States?  My answer would be "no" because of the word "natural"; they would be neither native born citizens nor citizens born to natives.

(Related note:  For those interested in the issue, I recently came across this scholarly post at Red State from a year or so ago that covers the post-ratification sources well, although it does not directly take up the Ted Cruz issue:  On this “Natural Born Citizen” Issue, Part I: From Alexander Hamilton to Lynch v. Clarke).