If you’re a constitutional scholar who loves debating the etymology of terms used in the late 18th century, the past few weeks have been particularly exciting. For years there’s been chatter among birthers about whether or not Ted Cruz is eligible to run for president, but when he announced his candidacy earlier this year, the general consensus was that he’s probably qualified, and that’s good enough.
But then, as can be said for much of the U.S. political landscape in this election cycle, Donald Trump happened. In the first week of January, Trump dusted off his old Obama-birther handbook and went to work on new rival Ted Cruz, transforming his Canadian birth from joke fodder to a legitimate issue — depending on whom you ask. Now the obscure academic debate has moved to mainstream publications, and it may have real implications for Cruz’s political future. Here’s a guide to the various arguments on whether the Texas senator is the latest victim of birther fearmongering, or a sneaky Canuck trying to seize control of the U.S. government.
The Issue
Ted Cruz was born in Calgary, Alberta, on December 22, 1970, to Eleanor Darragh, who was born in Delaware, and Rafael Cruz, who was born in Cuba. The Cruzes were working for the oil industry at the time, and relocated to Houston, Texas, when Ted was 4.
Someone is considered an American citizen if they meet one of three qualifications: They are born on U.S. soil, regardless of their parents’ citizenship; they are born outside the U.S. to at least one American parent; they go through the naturalization process and are granted U.S. citizenship.
Cruz is clearly a citizen under the second qualification, so what’s the problem? Well, according to Article II, Section 1 of the Constitution:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
Cruz is 45 years old and has lived in the U.S. since he was a child, but since the framers never explained what the term “natural born Citizen” means, his presidential eligibility is up for debate.
Arguments in Favor of Cruz’s Eligibility
Of course, one of the biggest proponents of the “Cruz is eligible” theory is Harvard-educated lawyer and former clerk to Supreme Court Chief Justice William Rehnquist, Ted Cruz. In the last GOP debate he argued:
Under longstanding U.S. law, the child of a U.S. citizen born abroad is a natural-born citizen. If a soldier has a child abroad, that child is a natural-born citizen. That’s why John McCain, even though he was born in Panama, was eligible to run for president. If an American missionary has a child abroad, that child is a natural-born citizen. That’s why George Romney, Mitt’s dad, was eligible to run for president, even though he was born in Mexico.
(Cruz went on to paint birthers as so nutty that they’d question the citizenship of Donald Trump, who was born in the U.S., because his mother was born in Scotland.)
The “longstanding U.S. law” Cruz is likely referring to is the Naturalization Act of 1790, which was passed by the first Congress three years after the Constitution was written. It states 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.”
So, case closed? Nope! That’s the only time Congress clarified the meaning of “natural born citizen,” but as FactCheck.org explains, that law was superseded by the Naturalization Act of 1795, where the term “natural born citizens” was changed to just “citizens.”
A 2011 report from the nonpartisan Congressional Research Service noted that switch, and delved deep into the 19th-century understanding of the term “natural born” under English common law. It concluded that anyone who is a U.S. citizen at birth can run for president:
The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.
Neal Katyal and Paul Clement, two former solicitor generals who served in the Barack Obama and George W. Bush administrations, respectively, backed up that analysis in an often-cited March 2015 op-ed in the Harvard Law Review. They explain that children born outside of the British Empire were still subjects, and were described in British law as “natural born.” “The framers, of course, would have been intimately familiar with these statutes and the way they used terms like ‘natural born,’ since the (British) statutes were binding law in the colonies before the Revolutionary War,” they said.
Katyal and Clement also note that we have a good idea of why the “natural born citizen” requirement was included in the Constitution. Shortly before the document was drafted, John Jay, the future first chief justice of the Supreme Court, suggested in a letter to George Washington that they should 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.”
The framers were concerned about foreign influence on the newly formed U.S. government, but as Katyal and Clement point out, “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.”
Bryan A. Garner, law professor and longtime editor-in-chief of Black’s Law Dictionary, took a stab at the issue this month in The Atlantic and found that the framers would have understood the British term “natural born subject” to include “the foreign-born child of a subject, as long as the subject-parent was the father.”
Today, Cruz would not be disqualified by that patriarchal stipulation. “Even if it once mattered (until 1934), the sex of the parent-citizen almost certainly isn’t a factor under current American law,” Garner writes. “The Supreme Court would today hold that the Fourteenth Amendment’s Equal Protection Clause obliterated any such distinction.”
Akhil Reed Amar, a law professor at Yale University, agreed in a CNN opinion piece that Cruz might not have been eligible if he were born in 1790. But he writes:
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.
And a good thing, too, given that the rules of 1790 were rather sexist. In both England and America, the law in that era typically focused on the status of a foreign-born baby’s father, not mother. In other sections of the 1790 law, race tests were in place, treating “white” persons better than all others.
Arguments Against Cruz’s Eligibility
Like many issues surrounding Ted Cruz, the eligibility controversy appears to be partially fueled by the fact that pretty much everyone hates him. One scholar Donald Trump frequently cites when making his Cruz-birtherism argument is Harvard’s Laurence Tribe, who was once the senator’s professor. He’s the scholar Trump mentioned in the last debate, prompting Cruz to dismiss him as “a left-wing judicial activist” and “major Hillary Clinton supporter.”
In a recent Boston Globe op-ed, Tribe said he actually believes Cruz is eligible to be president — but that’s because unlike Cruz, he’s not an “originalist,” or “one who claims to be bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption.” Tribe argues that the sort of judge Cruz admires — one who refuses “to discard the Second Amendment’s ‘right to bear arms’ as a historical relic, or to limit that right to arms-bearing by members of today’s ‘state militias,’ the national guard” — should stick with the sexist 1790 definition of a “natural born citizen” and find Cruz ineligible for the presidency.
It appears Tribe’s aim wasn’t to derail Cruz’s campaign, but to needle him for his opposition to “living constitutionalists,” like his old professor. Apparently, the dispute between Cruz and Tribe dates back several decades:
When Cruz was my constitutional law student at Harvard, he aced the course after making a big point of opposing my views in class — arguing stridently for sticking with the “original meaning” against the idea of a more elastic “living Constitution” whenever such ideas came up. I enjoyed jousting with him, but Ted never convinced me — nor did I convince him.
At least he was consistent in those days. Now, he seems to be a fair-weather originalist, abandoning that method’s narrow constraints when it suits his ambition.
Other scholars aren’t arguing against Cruz simply because they find him irritating and his position ironic. Earlier this month, Mary Brigid McManamon, a constitutional law professor at Widener University’s Delaware Law School, said Cruz is ineligible, writing in the Washington Post:
The concept of “natural born” comes from common law, and it is that law the Supreme Court has said we must turn to for the concept’s definition. On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are “such as are born within the dominions of the crown of England,” while aliens are “such as are born out of it.” The key to this division is the assumption of allegiance to one’s country of birth.
McManamon, an originalist, takes issue with Katyal and Clement’s Havard Law Review op-ed, saying the laws they cite are new statutes passed by Parliament rather than longstanding English common law. “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,” she writes. “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.”
Writing in Salon this week, Harvard Law professor Einer Elhauge agreed with McManamon that what the framers had in mind was the English common law meaning of “natural born”: someone born within a U.S. territory. He also argues that even if there are other methods by which one can become a citizen at birth, the word “natural” is “a limiting qualifier that indicates only some persons who are born citizens qualify” for the presidency.
Furthermore, Elhauge says that if we’re willing to accept that a naturalized citizen (say, Arnold Schwarzenegger) is ineligible for the presidency, the idea that an American born abroad can’t be president either is reasonable:
The concern at the time was obviously that foreign-born persons might not be as loyal to the U.S. One might think that concerns about disloyalty are odd for persons who have lived in the U.S. as citizens for a long time, but that oddity was also true at the founding. Moreover, no one claims the clause means that naturalized citizens (who may have lived in the U.S. since they were small children) are eligible to run for president, even though they had to do far more to prove their loyalty to the U.S. than someone born abroad who happened to have one U.S. citizen parent.
The line between those born in the U.S. versus abroad to U.S. parents certainly seems debatable. But it is no less sensible than the alternative line between those born abroad to U.S. parents versus those have been naturalized citizens for decades. This is one of those issues where general principles (even living ones) do not dictate any particular dividing line, and we need some technical fixed rule. Unfortunately for Ted Cruz, that technical rule does not permit his candidacy.
The Bottom Line: We Don’t Really Know If Cruz Is Eligible to Be President
Yes, this may be one of those instances where Donald Trump is right. While more legal scholars seem to think the court would find Cruz eligible, we can’t say for sure because the Supreme Court hasn’t taken up the issue. As PolitiFact notes, lawsuits filed in 2008 contesting John McCain’s eligibility didn’t go anywhere. “We know from the McCain lawsuits, courts don’t want to touch this,” said Sarah Duggin, a Catholic University law professor who has studied the issue extensively. “It very well may be that the courts would refuse to go near this. There are so many issues.”
In McCain’s case the matter was settled when the Senate passed a measure stating that while he was born in Panama, “John Sidney McCain, III, is a ‘natural born Citizen’ under Article II, Section 1, of the Constitution of the United States.” The Senate is far less likely to do the same for Cruz because his claim is murkier than McCain’s — and as with everything Cruz does, there’s the usual interpersonal issue.
Houston attorney Newton B. Schwartz Sr. is still hoping the Supreme Court will address the issue, so he filed a lawsuit last week in U.S. District Court challenging Cruz’s “natural born” citizenship. Duggin believes private citizens don’t have standing to sue, but the court could be forced to take up the issue if Cruz is challenged by another presidential candidate, or excluded from a primary ballot due to his Canadian birth.
Regardless of the legal outcome, Trump has achieved his goal. Remember, he isn’t saying he knows Cruz is ineligible, he’s just helpfully pointing out that you don’t want a huge legal controversy hanging over your party’s presidential nominee. A Monmouth University poll released this week shows that a sizable number of Republican voters are at least confused about whether Cruz is eligible to be president (and presumably most haven’t even delved into the definitions of early American legal terms). Two-thirds think Cruz is eligible to run, while 12 percent say he isn’t and 24 percent aren’t sure.
On the other hand, Cruz has reason to hope that he’ll survive this controversy over his citizenship. President Obama is about to end his second term, and two years ago a poll found 19 percent of Americans still thought he was definitely or probably not a U.S. citizen.
