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42 posts from January 2016


Laurence Tribe and Donald Trump
Michael Ramsey

In last night's debate, Donald Trump cited Harvard Law Professor Laurence Tribe for the proposition that serious doubt hangs over Ted Cruz's eligibility to be President.  (Josh Blackman quotes the transcript here).

This is wrong for two reasons.

First, that's not what Professor Tribe said.  In his Boston Globe op-ed (his most recent statement I know of), he said that originalists should find Cruz ineligible -- and since Cruz says he is an originalist, that makes for an amusing irony.  But Tribe went on to say that he  thinks Cruz is eligible under the Constitution's modern meaning and moreover that "no real court is likely to keep Cruz off the ballot, much less remove him from the White House if he were to win."  

Second, as both Andrew Hyman and I pointed out on this blog, Tribe's originalist argument has a serious flaw.  Tribe states:  

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.

That is not true.  Under both late eighteenth-century English law, as explained in Blackstone, and U.S. law as enacted by the First Congress in 1790, some people born abroad had "natural born" status as a result of the nationality of their parents.  There is simply no dispute about this point.

One can still argue that Cruz is ineligible (though I think the argument is mistaken, as I've explained at length).  But one cannot argue that Cruz is ineligible because the law of the 1780s and 1790s required birth within the country to be natural born.

In my view, Professor Tribe should clarify both points.  Otherwise, he allows this debate to take a very misleading turn.

Kurt Lash: The Due Process Understanding of the 1866 Civil Rights Act
Michael Ramsey

[Ed.: This post has nothing to do with natural born citizens.]

Kurt T. Lash (University of Illinois College of Law) has posted The Due Process Understanding of the 1866 Civil Rights Act on SSRN.  Here is the abstract:

Scholars have long looked to the 1866 Civil Rights Act for clues to understanding the original meaning of the Fourteenth Amendment. Despite widely divergent conclusions about the Amendment, almost all scholars share two key assumptions about the Act. First, the framers intended the Fourteenth Amendment’s Privileges or Immunities Clause to retroactively constitutionalize rights protected by the Civil Rights Act of 1866. Second, the framers of the Civil Rights Act sought to enforce the “privileges and immunities of citizens in the several states” protected under Article IV and described in the antebellum case Corfield v. Coryell. A close look at the original sources, however, suggests that neither of these assumptions are correct. The members of the Thirty-Ninth Congress who passed the 1866 Civil Rights Act sought to enforce the equal due process rights of all persons, not just the special privileges and immunities of citizens. Scholars have failed to recognize this by failing to study the original and final versions of the Civil Rights Act.

The original version of the Civil Rights Act guaranteed all persons certain equal rights relating to the protection of person and property. Proponents described these rights as essential aspects of the due process rights of life, liberty, and property originally declared in the Declaration of Independence and constitutionalized by the Fifth Amendment’s Due Process Clause. However, due to concerns that Congress lacked power to enforce the rights of non-citizens, proponents amended the Act to protect only citizens. John Bingham, the man who framed Section One of the Fourteenth Amendment, expressly viewed the 1866 Civil Rights Act as an effort to enforce the Fifth Amendment’s Due Process Clause, but he refused to support the Act. According to Bingham, the amended version unjustly failed to protect all persons’ due process rights. Bingham also insisted that protecting anyone’s due process rights required a constitutional amendment. Bingham subsequently submitted his second version of Section One of the Fourteenth Amendment — a version that included due process rights for all persons. Following the ratification of the Fourteenth Amendment, Congress repassed the Civil Rights Act of 1866 but extended its key provisions to protect all persons and not just citizens. Satisfied that Congress now had the power to enact such legislation, Bingham supported the final version of the Civil Rights Act. The debates of Congress, including the objections of John Bingham, were well published and prompted public commentary which reflected the due process reading of the Civil Rights Act and suggest a Civil Rights Act public understanding of the Due Process Clause.

A Response to Michael Ramsey on Originalism and Natural Born Citizens
Thomas Lee

[Ed.: This guest post is from Thomas H. Lee, the Leitner Family Professor of International Law and Director of Graduate and International Studies at Fordham University Law School.  It responds to some earlier posts on this blog.]

I want to begin by saying Michael Ramsey’s draft paper is the best thing out there on the question of the original meaning of “natural born citizen” in Article II.  That’s not surprising because he is one of the best, most honest originalists/textualists of our generation, as I can attest from co-authoring a Presidential Power Stories chapter with him on the Prize Cases.  I am going to be posting my own complete paper on SSRN next week, which covers much of the same evidence he does but interprets it somewhat differently; the only important additional piece of evidence I discuss is a 1784 Maryland statute mentioned in my LA Times op/ed that made Lafayette a “natural born citizen.”  I’d like to describe here our agreements and disagreements.  (1) Most importantly, Michael and I agree that being a natural born citizen (NBC) is not synonymous with “born in the USA.”  (2) We also agree that prior English practice and the law of nations is very important to understanding what NBC in Article II meant in 1788 (that’s when New Hampshire, the ninth state, ratified).  (3) Finally, we both agree that the 1790 Naturalization statute does not say children born abroad to a US citizen mother are natural born citizens, and in fact the best interpretation of the 1790 statute is that it applies only to the children of American fathers or of American fathers and mothers. 

Where we disagree.  (1) In terms of method, Michael is more textualist than I am—I’m very sympathetic to originalism (unlike Larry Tribe) but tend to focus on the purpose behind enactments and provisions, general legal principles, intellectual history, and broader socioeconomic and political history.  This means that he places more importance on statutes using the same words or “natural born subjects” and contemporaneous dictionaries; I focus more on the purposes of constitutional provisions and enactments.  When one considers purposes, the NBC Clause was intended to ensure that the President and military Commander in Chief was loyal to the USA and did not possess conflicting allegiances to other countries (e.g., Lafayette to a republican France).  Naturalization statutes, including the 1790 Naturalization statute that uses the words “natural born citizen” and their English antecedents do not address presidential eligibility, but rather who has to follow additional steps to become citizens. 

(2) It’s true, as Michael says, that both Parliament and Congress have tweaked that definition over time.  He concludes, not unreasonably, from this evidence that Congress has broad discretion under the “Naturalization Clause” to define who is a “natural born citizen” eligible to be President.  Again, naturalization statutes are irrelevant to constitutional eligibility to be President.  And there is nothing in the legislative history of the Article I Naturalization Clause to suggest that it was meant to extend to Congress a power to shape the presidential eligibility standards pertaining to citizenship in Article II.  Consider, as well, what such a congressional power means: Congress has broad discretion to change standards of presidential eligibility on the ground of citizenship set forth in Article II.  What is the limiting principle?  Some connection to the United States is what Michael proposes.  In my opinion that is a slippery standard (Lafayette counted, Congress could make Arnold Schwarzenegger eligible by statute—a constitutional amendment would be unncessary) and can’t be what the constitutional words, “natural born citizen” meant.  Isn’t it more logical (and possibly textualist) to construe the word “natural” in the constitutional provision as referring to the two major principles of natural law regarding citizenship/subjectship then in play—jus soli and jus sanguinis?  As I describe in another paper about the civil law’s influence on early American constitutionalism, the early Americans were very much sympathetic to the civil law, more than England.

So what do I think “natural born Citizen” in Article II means?  My own research, which I will describe in my paper (stay tuned—on SSRN next week), indicates at the very least it included children of public officials the government sent abroad.  It would have been perverse to punish those who went abroad to serve the sovereign, by disqualifying their children from  the highest political office.  In my paper, I call these public citizens or subjects.  (This exception arguably includes women who might serve, based on a seventeenth century English statute that mentioned mothers, presumably ladies-in-waiting serving Mary when the court was in the Netherlands).

As to private citizens or subjects who have children abroad, the picture is murkier.  Obviously these people did not go abroad to serve the sovereign, but rather for voluntary reasons, likely of economic nature.  And so their offspring cannot be presumed to have the same warrants of parental loyalty. But the mid-late eighteenth century English statutes, for mercantilist reasons, indicate that children of English men to the second generation were deemed “natural born subjects.” The background presumption was that the DNA of political loyalty depended on the allegiance of the father; the mother was wholly irrelevant.

In summary, by the mid-late eighteenth century, the rule that public subjects' children born abroad were natural born subjects had penetrated the common law, even according to Blackstone, and was a natural principle of the law of nations that did not require a parliamentary statute to activate.  For private subjects in England, statutes may still have been required to make their children natural born subjects. So there are two possible conclusions here from an originalist perspective: (1) only the children of public citizens/subjects born abroad are natural born citizens eligible to President or high political office in UK (ambassadors, ministers, soldiers, courtiers (including ladies-in-waiting), so John McCain was good to go on this basis); (2) the children of private citizens/subjects born abroad to citizen/subject fathers or paternal grandfathers are “natural born citizens/subjects.” Both are consistent with the larger point that the rule of blood—jus sanguinis—was part of the “natural” principles referred to in the Natural Born Citizen Clause.  Why did I pick the broader definition in my LA Times op/ed, to include eligibility for children born abroad to private citizen fathers?  I think it seems fair to me to say that if there is reasonable doubt, then go with the provision that gives broader access, the more democratic one.  But this is a closer call from an orignialist perspective.  But it’s a different way to think about it than from a textualist approach as Michael Ramsey has taken.

MICHAEL RAMSEY adds:  I appreciate the kind words, and I think this post is an excellent contribution in clarifying the debate.  To be clear, I don't think I actually agree with the third point of "agreement" mentioned in the opening paragraph (I think the 1790 statute is likely ambiguous on this point), but I also don't think it affects the wider debate much.


Professor Tribe on Natural Born Citizens
Andrew Hyman

In a recent opinion piece for the Boston Globe, Professor Laurence Tribe writes: "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."  In contrast, the source that Tribe cites says: "By 1787, English law thus included two bases for natural born citizenship: (1) birth in England; and (2) birth abroad as the child or grandchild of a natural born English subject."  Presumably this was a very forgivable unintentional error on Professor Tribe's part.

Recently, I came across an English statute from 1747 that indicates a third basis in English law for natural born citizenship (NBC): seven years of residency in the American colonies, regardless of the location of birth or the citizenship of the parents, provided the colonist took an oath of fidelity to the protestant religion.  If one were a stickler about English law of the 18th century (which I am not in this instance), it appears that Senator Cruz would qualify for the presidency this third way too, although we would have to sever the religious test.  

As indicated in my blog post a few days ago, I am inclined to simply use Samuel Johnson's dictionary to explain what a natural born citizen is, without relying on English law.  There are several reasons for this.  First, the 1747 statute would make the NBC requirement superfluous, given that the religious test must be ignored, and given that the Constitution already requires being "fourteen Years a Resident within the United States." Second, the framers of our Constitution might well have explicitly incorporated old English law into the NBC Clause, as they did into the Seventh Amendment, if they had really wanted to.  Third, I am not a big fan of deeming constitutional phrases as technical terms of art unless they are used verbatim, and of course the NBC Clause departs from the verbatim English terminology (mainly because the framers thought the word "subject" was inappropriate absent a monarchy).  And, fourth, there is little evidence that the framers wanted to require patrilineal transmission of citizenship as an eligibility requirement for president (without requiring the president be male), whereas patrilineal transmission might well be necessary if we were to put aside the 1747 statute in favor of older English law.
So, I recommend Johnson's dictionary.  It still leaves some ambiguity, which Congress and the courts can take care of.

P.S. Thanks to Rob Natelson for sending me the full text of the 1747 statute, which I uploaded, and which is linked above.

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.


... 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. 


Mary Brigid McManamon on Ted Cruz
Michael Ramsey

In the Washington Post, Mary Brigid McManamon (Widener Law School): Ted Cruz is not eligible to be president.  Her core argument is that English common law recognized only birth within the country for "natural born" status:

In this election cycle, numerous pundits have declared that Cruz is eligible to be president. They rely on a supposed consensus among legal experts. This notion appears to emanate largely from a recent comment in the Harvard Law Review Forum by former solicitors general Neal Katyal and Paul Clement. In trying to put the question of who is a natural-born citizen to rest, however, the authors misunderstand, misapply and ignore the relevant law.

First, although Katyal and Clement correctly declare that the Supreme Court has recognized that common law is useful to explain constitutional terms, they ignore that law. Instead, they rely on three radical 18th-century British statutes. While it is understandable for a layperson to make such a mistake, it is unforgivable for two lawyers of such experience to equate the common law with statutory law. The common law was unequivocal: Natural-born subjects had to be born in English territory. The then-new statutes were a revolutionary departure from that law.

Professor McManamon is right about the traditional English common law.  If we were having this discussion in, say, 1400, Senator Cruz would not be considered "natural born."  I don't understand, however, why she thinks that's decisive or why reliance on the statutes is inappropriate.  Viewed from the framers' perspective, the statutes were not "new" or "radical": statutes defining persons born abroad to English-subject parents as "natural born" had been on the books since at least 1677, and Blackstone writing in 1765 described them as an ordinary part of English law.  The 1677 statute may have been "radical" in 1677 (although it had some precedents as well), but it's very odd to think of it as "radical" in 1787-88.  To the contrary, the parliamentary practice was, like the ancient common law, part of the framers' English law background.

Professor McManamon says it is an "unforgivable" "mistake" to equate the common law and the statutory law.  But I don't think anyone -- least of all Clement and Katyal -- is confused about the source of law.  (Nor do I think this sort of sneering is useful).  When the framers considered the legal meaning of "natural born," presumably they considered all of its legal meanings, not just the (superseded) common law meaning.  McManamon would have us believe that the framers thought only common law was relevant, even though there was a statutory meaning of "natural born" that had been in place for over 100 years.  Or, another way of putting it: she would have us believe that the framers wanted to limit eligibility to people born in the United States, and the way they did that was to use a legal phrase that had not had that meaning at any point in their lifetimes.  While I would not go so far as to call that an unforgivable mistake (I'm pretty forgiving), I do think it is a substantial error.

(Note: Professor McManamon's op-ed is based on this law review article she published last year, which gives a more detailed version of the argument.  Again, I don't doubt that she's right about the common law, but I don't understand the conclusion she draws from it).

Thomas Lee on Textualism and Originalism
Michael Ramsey

In the LA Times, Thomas Lee (Fordham) has an article on natural born citizens that I discussed earlier.  Here I want to say a few words on his discussion of textualism and originalism, which I find (with all respect) sort of odd.

He begins: 

There are three leading theories of how to interpret the Constitution today. One is textualism: the Constitution means what its words say. The historical context of the words is important when a modern plain meaning is not self-evident. A second theory, adopted by many liberals, relies on a “living Constitution”: the Constitution means what is most consistent with fundamental constitutional values as applied to present circumstances. The third theory, championed by many leading conservatives, is originalism: The Constitution means what ordinary people would have understood it to mean at the time it was ratified, which is 1788.

I have doubts about this description of textualism.  Perhaps there are people who think that we look to historical context only when a modern plain meaning is not self-evident.  I am not sure who is in this category, and I wouldn't call it a "leading theory."  In my view there are two main strands of textualism.  One is what I've called "historical textualism," which always looks at the meaning of the words in their historical context.  The second is modern-meaning textualism, which (as I understand it) only looks at modern meaning.  (This theory is most associated with Professor Tom Bell of Chapman Law School).

Nonetheless, I'm willing to accept that it is a possible theory of interpretation to look at historical meaning only if the modern meaning is ambiguous (though I'm not sure why anyone would want to do it that way).  Professor Lee continues:

In a textualist view of the Constitution, historical context is also important because “natural born Citizen” has no modern plain meaning and the words don't appear anywhere else in the Constitution. Textualists, by contrast to originalists, favor written statutes in mining historical context. In this case, two American laws enacted in 1784 and 1790 are applicable, along with older English statutes which use the similar words “natural born subject.”

This supposed contrast, I think, is simply wrong.  I'm not aware of any textualists who "favor written statutes in mining historical context," and originalists also look to written statutes to find historical meaning.  (Also note this has nothing to do with Professor Lee's purported distinction between originalism and textualism in the previous paragraph).  Indeed, I think the effort to separate textualist and originalist views of the meaning of natural born is mostly misconceived.  Historical textualism (in constitutional interpretation) is essentially a branch of originalism; with originalism's modern focus on original public meaning I would say it's the dominant view.  It is the view explained and defended by Justice Scalia and Bryan Garner in their book Reading Law, which nowhere suggests the idea that contemporaneous written statutes are the best evidence of historical meaning.  

There are some originalists who are not textualists, but the distinction does not turn on what sources they consult; it turns on how tied to the Constitution's text they are in reaching conclusions.  I think Professor Lee has misunderstood the origin of the word "textualist."  It does not refer to what kind of evidence the person considers (textual versus non-textual) but what ultimate source of authority the person identifies (the Constitution's text, or the framers' general purpose).

Professor Lee wants to make the distinction because he wants to say that textualists and originalists would reach different conclusions about the meaning of natural born.  According to his article, textualists would look at eighteenth-century statutes (which seem to favor Senator Cruz) and originalists would look at broader ideas about citizenship (which seem to favor the opposing view).

Again, I think this is wrong, and the specific case of natural born citizens demonstrates it. Originalists and historical textualists (to the extent there is any meaningful distinction between them) agree on the relevant sources (although they may disagree on what the sources mean).  They would look at both kinds of sources that Professor Lee identifies.  Textualists would look at general ideas about citizenship because those ideas help assess what "natural born" means.  Non-textualist originalists would look to contemporaneous statutes that defined natural born because that usage indicates what the framers' background assumptions were.  And anyway, as I've said, most modern originalists are, generally speaking, historical textualists to a significant extent.  (I bet Senator Cruz is).

A final point: to the extent there is a difference between an originalist and a textualist analysis on this issue, I think Professor Lee has it backwards.  As I explain in my draft article, a narrow focus on the Constitution's text appears to raise problems for Senator Cruz, because it suggests that to be eligible his citizenship must be "natural" -- i.e., not statutory.  It's only by looking at historical uses of "natural born" in English and post-ratification U.S. statutes that one sees a meaning of "natural born" that includes statutory birthright citizenship.  Thus, an originalist (looking at the whole historical context) would be more likely to support Senator Cruz than would a pure textualist looking only at the text.


David Gans on Originalism and Affirmative Action
Michael Ramsey

At Balkinization, David Gans (Constitutional Accountability Center): Blind to History.  From the introduction: 

This week, the U.S. Treasury Department renamed the Treasury Annex in Washington, D.C. the Freedman’s Bank Building, commemorating the 150thanniversary of the Freedman’s Savings and Trust Company, a federal bank created during Reconstruction to benefit the newly freed slaves and their descendants.  The Freedman’s Bank Act was one of many race-conscious federal statutes passed, contemporaneous with the Fourteenth Amendment, to foster equal opportunities and help realize the Fourteenth Amendment’s promise of equal protection of the laws for all persons.  The Framers of the Fourteenth Amendment understood that race-conscious measures were necessary to fulfill the promise of equality contained in the Fourteenth Amendment.   Today, however, conservatives bent on eliminating affirmative action in education are turning a blind eye to this history. 

The post goes on to criticize this article by Paul Moreno (Hillsdale College -- Constitutional History) and this post by Mike Rappaport, both taking the opposing view.  As to the latter, he writes:

In the debates over the federal race-conscious measures of the Reconstruction Era, no one took the view, suggested by Rappaport, that the federal government was not bound by the Constitution’s demand for equal treatment before the law.  That was a core principle of due process, to which the federal government was bound under the Fifth Amendment.  (The Supreme Court has said as much repeatedly.)  In the arguments over racial preferences in Congress, the Fourteenth Amendment Framers and their opponents all assumed that the federal government was required to respect the equality of all persons. Supporters of the Fourteenth Amendment argued that sometimes taking race into account was necessary to fulfill that goal and made no differentiation between state and federal law in this regard, and they repeatedly won this debate in legislative battles.

Nor was the race-conscious legislation enacted by the Framers of the Fourteenth Amendment strictly remedial as Rappaport suggests.  The acts passed contemporaneous with the Fourteenth Amendment were not limited to the former slaves or the goals of redressing badges of slavery or other government-sponsored racial oppression.  Rather—like modern race-conscious admissions programs and other policies that use race to foster equality—the race-conscious measures enacted by the Framers of the Fourteenth Amendment were forward-looking in design, seeking to fulfill the promise of equality contained in the Fourteenth Amendment.  The Freedman’s Bank celebrated this week is a perfect example, ensuring that freed slaves and their descendants would have a place to keep their money, enabling them, as Frederick Douglass put it, “to rise in the world.” 


Claims that Senator Cruz is not “Natural Born” Need to be Taken Seriously
Rob Natelson

[Ed: This guest post is from Rob Natelson, a former constitutional law professor who is now Senior Fellow in Constitutional Jurisprudence at the Independence Institute and is likely well-known to readers of this blog for his works on the Constitution’s original meaning. His scholarship has been cited frequently at the Supreme Court by Justices and parties. See http://constitution.i2i.org/about.]

Some commentators are dismissing as merely frivolous the claim that Senator Ted Cruz is not a “natural born citizen” as the Constitution uses that term, and therefore ineligible for the presidency.

This dismissive attitude is a serious mistake. Although Senator Cruz’s belief that he is natural born may ultimately be vindicated, the case against him is very respectable.

At the outset, we should note that the requirement that a president be a “natural born citizen” is not an arbitrary rule. The Framers added it to the Constitution because history had taught them some hard lessons about the inadvisability of allowing a foreign-born person to become a country’s chief executive. In other words, the constitutional requirement is there for good reasons, and should be respected.

Senator Cruz was born in Canada of an American mother and a Cuban father. By congressional statute, he was a citizen at birth. His citizenship is not at issue. What is at issue is whether he is “natural born” as the Constitution uses the term.

When the Constitution was written, the default rule of international law was that, although for many purposes a person’s status followed the condition of the mother (according to the maxim partus sequitur ventrem), for citizenship or “allegiance” purposes status followed that of the father. Individual countries altered the default rule, and the Anglo-American statutory and common law altered it more than most. In Anglo-American countries, nearly all children born within a country were granted “natural born” status, even if their parents were both aliens. Although for several years Parliament may have allowed foreign-born children to claim citizenship through their mothers, well before the American revolution it has been firmly established that to be “natural born” such a child had to have a citizen father.

In other words, it was not sufficient, as some recent writings have implied, for the child to have a citizen mother.

In arguing the contrary, recent commentators have made several kinds of mistakes. Some seem to read founding-era sources that refer to the foreign-board children of citizen parents as natural born, not recognizing that the sources mean both parents—or the father alone rather than the mother. Admittedly, the sources can be tricky on this score. By way of illustration, the editor’s headnote to Bacon v. Bacon, an English decided by the Court of King’s Bench, seems to imply that the mother can pass citizenship. But the body of the case asserts clearly that the relevant status is that of the father.

Some writers have enlisted sources that directly contradict their thesis. For example, two writers cited Blackstone’s Commentaries to support their argument that a mother can convey natural born status to her foreign-born child. Actually, Blackstone affirms that the critical parent for these purposes is the father:

that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

Professor Michael Ramsey, while correctly concluding that the concept of citizenship was based on British law, ingeniously argues that Congress may change the definition of “natural born,” in part because the English Parliament did so from time to time. This argument is by no means impregnable, however, as Professor Ramsey recognizes. For one thing, Congress, unlike Parliament, is a legislature of limited powers. The Constitution grants Congress power to naturalize citizens, but it does not (expressly, anyway) grant power to alter the meaning of “natural born.” Moreover, allowing Congress to manipulate the definition this way it would be fundamentally inconsistent with the constitutional safeguard: It would allow Congress to decree that children born in a favored foreign country or of a favored foreign family were thereby “natural born.” (That may seem far-fetched today, but would have seemed less so during the founding era.)

The best evidence for granting natural-born status to the foreign-born child of a citizen mother and alien father derives from the Naturalization Act of 1790, adopted in the First Federal Congress. It provided in part:

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.

Senator Cruz’s father, although a Cuban, previously had lived in the United States.

Although Congress cannot alter the meaning of a constitutional provision, one may contend that this statute sheds light on the meaning of the constitutional meaning of “natural born.” It was adopted by a Congress that included important Founders and it was enacted before all of the 13 original states had ratified the Constitution. But at least four factors weaken its persuasive force:

First, the new federal Congress adopted it nearly a year after the Constitution had been ratified by eleven states. Its terms seem not to have been the subject of discussion during the ratification process.

Second, the statute is ambiguous. It applies to the “children of citizens.” That may mean children with at least one citizen-parent. But it also might mean children with two citizen-parents. As noted above, other founding era sources that, at first glance, might seem to mean the former, actually mean the latter.

Third, when Congress used the term “citizen” it may well have meant only male citizens. Taken alone, it would not seem so. But remember that the then-prevailing assumption was that citizenship status followed the father. Observe how the statute’s proviso focused solely on the father: “[T]he right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”

Fourth, the presence of “natural born” language in a statute dealing with naturalization—and not otherwise with natural born status—seems to demand explanation, and one likely explanation may not be good for Senator Cruz’s case:

During the founding era, certain private rights, such as inheritance and land ownership, could depend on citizenship or natural-born status. Congress may have been seeking, not to explain or define the constitutional requirement, but merely to extend private benefits to persons who might otherwise be excluded. This would explain why the statute provides that the “children . . . shall be considered as natural born”—not that they literally are natural born.

I am an admirer of Senator Cruz, and I wish him well in the court challenges that undoubtedly will arise. But no one should dismiss those challenges as baseless or frivolous.

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.