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01/14/2016

Akhil Amar (and others) on Ted Cruz
Michael Ramsey

At CNN Opinion, Akhil Reed Amar: Why Ted Cruz is eligible to be president.  He makes what I regard as the two core originalist points:

From the founding to the present, Congress has enacted laws specifying that certain categories of foreign-born persons are citizens at birth. The earliest statute, passed in 1790, explicitly called certain foreign-born children of U.S. citizens "natural born citizens." It did not say they should be treated "as if" they were "natural born citizens." It said they were in law deemed and declared to be "natural born citizens." Congressional laws have changed over the years, but this 1790 law makes clear that from the beginning, Congress by law has the power to define the outer boundaries of birth-citizenship by conferring citizenship at birth to various persons born outside the United States.

And:

... Congress has two powers under the Naturalization power: to define birth citizens, eligible for the presidency, and to allow other nonbirth citizens to become naturalized citizens, to treat them for most other (nonpresidential) purposes as if they had been born citizens.

When the framers were drafting the Constitution, they were aware that the British Parliament had a long tradition of passing both types of naturalization laws, and the founders were specifically aware of laws that Parliament had passed conferring birthright status upon certain babies born to English parents outside England, babies referred to by these landmark statutes as "natural born."

Note that the right question to ask is not: What were the natural-born statutory rules in 1788 or 1790? The right question is: What are the natural-born statutory rules on the day a given presidential candidate was born? These statutory rules have changed over the years, and Article II builds these future changes into its elegant language.

I agree.

RELATED:  Some other big-name constitutional law professors weigh in.  

Cass Sunstein, at Bloomberg View: Is Cruz 'Natural Born'? Well ... Maybe.  He calls it a close question but narrowly agrees with Cruz, mostly on the basis of the 1790 Act.  I think the prior English practice counts more than he does but generally I agree (and I appreciate the favorable comments).

Laurence Tribe, in the Boston Globe: Under Ted Cruz’s own logic, he’s ineligible for the White House.  The article's total analysis on eligibility is:

To his kind of judge [that is, an originalist], Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.

First, I'm always skeptical when an avowed non-originalist tells originalists what they have to believe about an issue.  Second, Professor Tribe's statement that "the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a 'natural born' citizen" is simply wrong, and I don't think anyone seriously argues otherwise.  But just to be clear, (a) English law in the 1780s recognized "natural born" status for those born abroad with English-subject fathers or English-subject paternal grandfathers, and (b) the 1790 naturalization statute expressly said that children of U.S. citizens born abroad were natural born citizens.

It's true that Senator Cruz wouldn't have been "natural born" under the 1788 English rule because his claim is through his mother not his father.  (The 1790 statute is a little ambiguous on this point, possibly requiring both parents to be citizens).  This is different from claiming that one must be born in the United States to be eligible; Professor Tribe seems to be conflating two different arguments in the quoted paragraph.   But I've explained at length why I think an originalist should nonetheless find Cruz eligible.  Professor Tribe may find that unpersuasive (I welcome his comments), but he can't just declare that originalism necessarily establishes Cruz's ineligibility.