Now that Texas Senator Ted Cruz has officially entered the Presidential race, first via a YouTube video that was sent to his Twitter followers at midnight and then this morning during his speech at Liberty University, the question is once again being raised as to whether or not he is eligible to run for President. As you will recall, Rafeal Edward (Ted) Cruz was born in September 1970 in Calgary, Alberta, Canada. His parents are Rafeal Bienvenido Cruz, who was born in Cuba in 1939, came to the United States under a student visa in the late 1950s, and later became a permanent resident alien shortly after Fidel Castro took power in Havana on a claim of political asylum, and Elizabeth Darragh, an American citizen who was born in Delaware, married the senior Cruz in the 1960s and they moved to Alberta during the first shale oil boom in that province. Under the Constitution, in order to be legally eligible to be President one must be at least 35 years of age, have lived in the United States for at least the previous fourteen years, and be a “natural born” citizen of the United States. It’s on the last question that some have wondered whether Cruz is eligible to be President notwithstanding the fact that he was born in Canada and, at least until some point several years ago, was at the very least legally eligible under Canadian law to claim Canadian citizenship.
To some degree, of course, the questions about Cruz’s eligibility are being raised in jest by pundits who noted the extent to which questions about President Obama’s citizenship took hold among some segments of the right both before and after the 2008 Presidential election. Indeed, notwithstanding the fact that the White House took the extraordinary step of obtaining a copy of the President’s official certified birth record from Hawaii, there remain those who continue to make the claim that the President is not eligible to serve in the office he has held for the past six years. There are, however, a group of people who are apparently serious about their position regarding Cruz’s ineligibility, largely because they hold to a definition of “natural born citizen” that is simply not supported by existing law.
In any case, it just so happens that Neal Kaytal and Paul Clement, two of the best appellate litigators in the country who happen to come from opposite sides of the political aisle, published a piece earlier this month in the Harvard Law Review that answers this question quite definitively and makes it clear that Cruz is indeed a “natural born citizen” as that term is used in Article II of the Constitution:
While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings. The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law. Both confirm that the original meaning of the phrase “natural born Citizen” includes persons born abroad who are citizens from birth based on the citizenship of a parent.
As to the British practice, laws in force in the 1700s recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used “natural born” to encompass such children. These statutes provided that children born abroad to subjects of the British Empire were “natural-born Subjects . . . to all Intents, Constructions, and Purposes whatsoever.” The Framers, of course, would have been intimately familiar with these statutes and the way they used terms like “natural born,” since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone’sCommentaries, a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.
No doubt informed by this longstanding tradition, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were “natural born Citizens.” The Naturalization Act of 1790 provided that “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 . . . .” The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress. That is particularly true in this instance, as eight of the eleven members of the committee that proposed the natural born eligibility requirement to the Convention served in the First Congress and none objected to a definition of “natural born Citizen” that included persons born abroad to citizen parents.
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The original meaning of “natural born Citizen” also comports with what we know of the Framers’ purpose in including this language in the Constitution. The phrase first appeared in the draft Constitution shortly after George Washington received a letter from John Jay, the future first Chief Justice of the United States, suggesting:
[W]hether it would not be wise & seasonable to provide a . . . strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american [sic] army shall not be given to, nor devolve on, any but a natural born Citizen.
As recounted by Justice Joseph Story in his famous Commentaries on the Constitution, the purpose of the natural born Citizen clause was thus to “cut[] off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interpose[] a barrier against those corrupt interferences of foreign governments in executive elections.” The Framers did not fear such machinations from those who were U.S. citizens from birth just because of the happenstance of a foreign birthplace. Indeed, John Jay’s own children were born abroad while he served on diplomatic assignments, and it would be absurd to conclude that Jay proposed to exclude his own children, as foreigners of dubious loyalty, from presidential eligibility.
The birthers, on the other hand, have argued that the phrase “natural born citizen” in the Constitution has a specific meaning that requires that both of a person’s parents be citizens of the United States at the time of their birth. It doesn’t actually say that in the Constitution, of course, and there isn’t a single shred of legal authority they can rely on to support their claim. Despite this, they rely upon a definition of “natural born citizen” given by a Swiss legal philosopher named Emmerich de Vatel. The problem is that the edition of the work in which de Vatel developed this definition of the phrase wasn’t translated into English and published outside of Switzerland until ten years after the Constitution was drafted. Therefore, it’s highly unlikely that his work had any influence on the Founders. More significantly, though there is the simple fact that the Constitution and American law clearly recognize only two forms of American citizenship. Either you are a citizen from the time you are born or you become a citizen through the process of naturalization. There is no other class of citizenship, and no special class of citizenship granted by the law to people who happen to have two parents who are U.S. citizens as opposed to just one. Obviously, the term “natural born citizen” as it is used in the Constitution was meant to refer to the first kind of citizen, the person who is a citizen from the time of their birth.
Moreover, it’s worth noting that, under this de Vatel definition, and not counting Obama, the United States has had four Presidents since 1820 who had at least one parent who was not an American citizen at the time of their birth — Andrew Jackson,James Buchanan, Chester Alan Arthur, and Herbert Hoover. At no time did anyone make the argument that any of these men were not “natural born citizens,” so there’s no reason to think that the Founders ever intended to apply this standard to determine eligibility for the Presidency.
Based on this clear original meaning of the “natural born citizen” clause, then, it is obvious that Cruz is eligible to be President. While he was not born in the United States, at least one of his parents was an American citizen at the time of his birth. Furthermore, as Dara Lind notes at Vox, Cruz’s mother had lived in the United States for at least 14 years after her 14th birthday, which is relevant due to the fact that, under the citizenship law in effect at the time he was born, that is all that was required to confer citizenship by birth upon the child of an American citizen who happened to be born in a foreign country such as Canada. There are plenty of valid reasons to oppose Cruz’s candidacy, relying on a half-baked meritless legal theory should not be one of them.
