Ted Cruz is Not Eligible to run for president: A Harvard Law professor close-reads the Constitution The closer you study the Constitution, the weaker Ted Cruz's case squares with the actual meaning of "natural-born"
Einer Elhauge
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(Credit: Reuters/Chris Keane)
The argument that Ted Cruz is eligible to run for president initially looked strong, then probable but uncertain. But closer examination shows it is surprisingly weak.
The constitutional text provides that a president, unlike other elected officials, must be a “natural born citizen.” This language could not mean anyone born a citizen or else the text would have simply stated “born citizen.” The word “natural” is a limiting qualifier that indicates only some persons who are born citizens qualify. Moreover, when the Constitution was enacted, the word “natural” meant something not created by statute, as with natural rights or natural law, which instead were part of the common law.
At common law, “natural born” meant someone born within the sovereign territory with one narrow exception. The exception was for children of public officials serving abroad, which does not help Cruz because his parents were not serving the United States when he was born in Canada. The case of John McCain was entirely different because he was born in a U.S. territory (the Panama Canal Zone) and to U.S. parents who were serving the U.S. military.
The argument for Cruz rests on some old statutes, namely English statutes enacted before the U.S. Constitution and U.S. statutes enacted just after. But neither turns out to be persuasive on closer examination.
The English statutes extended natural-born status to persons born abroad whose father was any English subject, rather than only a public official. Some argue that the constitutional framers meant to refer to this statutory redefinition of the term “natural born.” But that position contradicts the ordinary meaning that the word “natural” indicates a non-statutory meaning. Moreover, Prof. Mary McManamon offers convincing evidence that the Framers meant the common law meaning. James Madison himself said in 1789 that the U.S. used the place of birth rather than parentage. In any event, Cruz’s father was not a U.S. citizen when he was born (again unlike McCain), so these English statutes do not help Cruz.
The U.S. statute in 1790 provided that “children of citizens of the United States” that are born abroad “shall be considered as natural born Citizens.” This has been thought the strongest evidence for Cruz’s position since so many 1790 congressmen had participated in the Constitutional Convention. However, this statute did not say these children were natural-born citizens. It instead carefully said they “shall be considered as” natural-born citizens, suggesting that Congress thought they were not natural-born citizens but should be treated as such. Indeed, there would have been no need to pass the statute if they were already understood to be natural-born citizens.
Further, when this Act was reconsidered in a few years, Madison himself pointed out that Congress only had constitutional authority to naturalize aliens, not U.S. citizens, and reported a bill that amended the statute to eliminate the words “natural born” and simply state that “the children of citizens of the United States” born abroad “shall be considered as citizens.” This indicates that Madison’s view was that children born abroad of U.S. citizens were naturally aliens, rather than natural born citizens, and thus could be naturalized by Congressional statute but should not be called “natural born.” Congress adopted this amendment in 1795.
