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01/11/2016

Thomas Lee on Originalism and Natural Born Citizens
Michael Ramsey

In the LA Times, Thomas Lee (Fordham): Is Ted Cruz a 'natural born Citizen'? Not if you're a constitutional originalist.  From the core of the argument:

To an originalist, a “natural born Citizen” is a person who is a citizen of the United States under “natural” principles of law in 1788. Two such principles were then in play in the U.S. Jus soli — the law of soil — was the principle that a child was subject or citizen of the sovereign who ruled the land or seas on which the child was born. Jus soli was viewed as a part of the common law of England, which was adopted by the American states. Jus sanguinis — the law of blood — held that a child's citizenship flowed from the parents' allegiance, regardless of place of birth. This principle was prevalent in continental Europe, and in England it was the basis for an exception to jus soli for children born there to foreign ambassadors.

The upshot is that to an originalist, someone like Cruz — born in a foreign country (and therefore not a natural born citizen of the United States by jus soli) and to a Cuban citizen father (and therefore not a natural born citizen of the United States by jus sanguinis ) — is not eligible to be president.

Obviously, I disagree.  And I think the article's later attempt to distinguish originalism and textualism, which I'll discuss in a separate post, has some conceptual missteps.  But the article, written by a top foreign relations law scholar (and my past co-author on a fun book chapter), gets the core challenge to Cruz's eligibility mostly right.  The key obstacle for Cruz is that under late-eighteenth-century English law, he would not have been considered "natural born"; that status was recognized for those born outside the country only if their fathers or grandfathers had been natural born citizens.  (My draft article goes through the relevant statutes).  Cruz claims citizenship only through his mother.

But Professor Lee is wrong to suggest that prior to 1844 "natural born" status could never come from the mother's side alone.  To the contrary, English law of the seventeenth century and up through 1730 recognized the "natural born" status of people born abroad with English fathers or mothers.  The rule limiting it to those with English subject fathers was only adopted in England by statute in 1730 (later extended to include people whose paternal grandfathers were English subjects).

As I discuss in my draft article, this raises a question.  Should originalists give "natural born" the specific meaning assigned to it by English statutes in 1788 (Professor Lee's view) or should originalists read it more broadly as meaning those to whom parliament/Congress gave subjectship/citizenship at birth?  My view is that the full context of English law shows that parliament had power to vary "natural born" status by statute, which it did repeatedly from the mid-seventeenth century through the time of the framers.  Contrary to Professor Lee's view, there was not (in England) a fixed view about what "natural born" meant; it meant what parliament described it as meaning from time to time.  I think it likely that parliament could not have designated as "natural born" someone with no connections to England at birth, but having an English subject mother was enough, as multiple statutes confirm.  And if parliament had power to vary "natural born" status from time to time, then I think the Constitution is best read as having given Congress that power as well.

Nonetheless, Professor Lee's article has the core statement of the opposing view, and people who think Senator Cruz is a natural born citizen need to address it.