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Whether you like Ted Cruz or not (me: not), you must have some concern as to whether he is truly eligible under our Constitution to be president at all. I wrote an article about this some time ago, but with Donald Trump pounding the drums and a slew of new articles on the subject, it's worth taking another look.

Ted Cruz Natural Born

Ted Cruz: Eligible to Be President?—Michael Hertz

Here are a few of the many recent articles on the subject: by constitutional law scholar Mary M. McManamon (he's ineligible), by former solicitor generals Neal Katyal and Paul Clement (he's eligible), by Jonathan Adler (eligible, but referring to a lot of the other articles).

In emails to the Guardian, Harvard professor Laurence Tribe (who taught Constitutional law both to Cruz and Obama) discussed Cruz’s own approach to constitutional issues, noting that under “the kind of judge Cruz says he admires and would appoint to the Supreme Court – an ‘originalist’ who claims to be bound by the historical meaning of the constitution’s terms at the time of their adoption – Cruz wouldn’t be eligible because the legal principles that prevailed in the 1780s and 90s required that someone be born on US soil to be a ‘natural born’ citizen.”

He added: “Even having two US parents wouldn’t suffice for a genuine originalist. And having just an American mother, as Cruz did, would clearly have been insufficient at a time that made patrilineal descent decisive.”

If he is nominated by the Republican Party and elected, it's almost a certainty that our “originalist” Supreme Court will find a way to render him eligible to be President, even though any honest assessment of the situation would say to the contrary.

“On the other hand, to the kind of judge that I admire and Cruz abhors – a ‘living constitutionalist’ who believes that the constitution’s meaning evolves with the needs of the time – Cruz would ironically be eligible because it no longer makes sense to be bound by so narrow and strict a definition.”

Tribe said: “There is no single, settled answer. And our supreme court has never addressed the issue.”

In 2008, Tribe argued that Senator John McCain was eligible because both his parents were U.S. citizens and because he was born in the Panama Canal Zone, which was sovereign American territory. But there were others who argued that you could only be natural born if born in U.S. territory, which the Canal Zone was not.

(Before I wrote this article, I had the chance to have an email correspondence with several of the scholars working on this issue, including Professor Tribe.)

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Personally, I like Professor McManamon's approach. Basically, you are a natural born citizen if you get that status as a result of your birth. The simplistic argument for Cruz is that he was born to an American mother in Canada, there's a Congressional statute that says he's a citizen, ergo he must be a “natural born citizen” because he was born into it. The trouble, though, is that Congress really doesn't have the power to declare someone to be a natural born citizen. It only has the power to naturalize aliens and make them citizens. And a naturalized citizen isn't natural born.

If you are born within the sovereign borders of the United States, you are a born a citizen without an act of Congress. It says so in Article 1 of the 14th Amendment to the Constitution. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” But that doesn't work for Cruz, because he was born in Canada.

Another argument is that the Constitution may be interpreted in accordance with British common law as it existed in 1787. “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.”

In other words, the British Parliament did provide that subjects born overseas could be British subjects. But that was a statute, not the common law, and our Supreme Court does not rely on British statutory law to interpret our Constitution. Even before the 14th Amendment was enacted after the Civil War, and even before there was any Congressional legislation, the Founders assumed that persons born in the United States were citizens therefore, because that tracked British common law. That's probably why they made no provision for citizenship by birth in the United States.

Those who argue for Cruz “put much weight on the first U.S. naturalization statute, enacted in 1790. Because it contains the phrase “natural born,” they infer that such citizens must include children born abroad to American parents. The first Congress, however, had no such intent. The debates on the matter reveal that the congressmen were aware that such children were not citizens and had to be naturalized; hence, Congress enacted a statute to provide for them. Moreover, that statute did not say the children were natural born, only that they should “be considered as” such. Finally, as soon as Madison, then a member of Congress, was assigned to redraft the statute in 1795, he deleted the phrase “natural born,” and it has never reappeared in a naturalization statute.”

It might be added that the statute itself was labelled the “Naturalization Law of 1790.” How could it be otherwise, when the only specific power Congress had was to “naturalize” people who were aliens? Naturalization turns a non-citizen into a citizen. But using a statute to do so makes it difficult to argue that the citizen is “natural born.” For instance, if Congress had never enacted a statute granting citizenship to children born overseas, they would not have been citizens. Moreover, Congress has the power (if it so wished) to declare that every child born in Canada (for example) is an American citizen. Surely the Founders would not consider such children to be automatically eligible to be president, although such a law would have rendered Ted Cruz a citizen, regardless of his mother's status.

In short, Ted Cruz is in real trouble. Of course, if he is nominated by the Republican Party and elected, it's almost a certainty that our “originalist” Supreme Court will find a way to render him eligible to be President, even though any honest assessment of the situation would say to the contrary. Laurence Tribe has indicated that he thinks Cruz's position is hypocritical, but that appears to be the way Constitutional law is now interpreted.

In our modern age, money is speech, corporations are people, and guns meant only for the state militia are now protected as private property. “Originalism” was supposed to interpret the Constitution the way the Founders meant for it to be interpreted. Now “originalism” interprets in accordance with the result the Court wants to reach.

michael-hertz

Michael Hertz

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