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Saturday, January 23, 2016

A President Born in Canada? Cruz, Lawrence Tribe, Natural Born Citizen, and the Law





In Presidential politics the issue of whether an American citizen born in a foreign country is eligible to become President of the United States under our Constitution arises from time to time.  When George Romney (father of Mitt), who was born in Mexico, ran for President in 1968, and when John McCain (born in the Canal Zone) ran in 2008, and now as Ted Cruz (born in Canada) makes his attempt for the office in 2016, Americans (particularly the oh-so-worried Donald Trump) are asking whether the candidate qualifies under our law for this exalted position. 




Article II, section 1 of the Constitution contains the relevant language:

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.

In each of the referenced elections the above-mentioned candidates arguably qualified under the statutes of the United States as eligible because at least one of his parents was a United States citizen at the time of his birth.  In Cruz’s case that would be his mother, who was born in Delaware (his father was Cuban).  But what exactly is the law on the meaning of “natural born citizen”?





The term is not defined in the Constitution, and, as it happens, the question has never been decided by the United States Supreme Court as applied to the presidency (though it has been decided for all other citizens).  Nonetheless the history of the provision and the state of the law at the time it was created gives “natural born citizen” a meaning that leads to an almost definitive answer that Ted Cruz would like.





Let’s go back in time to the drafting of the Constitution.  From 2016’s perspective it’s a given that the document would take the form we now know it to have, but things were very different in 1787 when the Constitutional Convention hammered out its provisions.  You have to appreciate what a startling idea a “republic” was to the people of that time.  In a republic the citizens control the country through elected representatives, a frightening idea when the entire world was almost exclusively run by monarchs, dictators, emperors, or despots of one kind or another.  It was daring to decide that people themselves could take the place of an all-powerful leader, and do things as well as an absolute ruler could.  When it came to choosing the form this new leader would take there were major debates about what to call this individual (as well as what restraints to place upon him).  The title should not sound too much like a king, and “president” (one who “presides”) was chosen as most apt (and limiting) for a democracy.  Article II was written to alleviate the worrying possibility that foreigners would come to the new United States and try to establish a monarchy.  Likely candidates (whose names were bruited about) included Frederick, Duke of York, the second son of George III, who, according to rumors flowing around the Convention, was being invited by some citizens to immigrate and become King of the United States; another possible contender was reported to be Prince Henry of Prussia. 


Frederick, Duke of York


At first glance the words “natural born citizen” seem to mean someone born in the area that became the United States, and, read that way, it would certainly cut out all three of the above contenders (unless “Canal Zone” can be extended to cover some extension of U.S. territory where John McCain was born, saving him). 

Professor Tribe
In an article appearing in the Boston Globe on January 11th of this year [https://www.bostonglobe.com/opinion/2016/01/11/through-ted-cruz-constitutional-looking-glass/zvKE6qpF31q2RsvPO9nGoK/story.html], Harvard Law Professor (and well-known expert on Constitutional Law) Lawrence Tribe, made the argument that Cruz might really have problems being eligible for the office, particularly if the issue reached the United States Supreme Court, where all four of the very conservative Justices are strict constructionalists, not in favor of broad readings of the Constitution that would violate the “original intent” of the drafters (and, we might impishly ask, would the four liberals on the Court stretch to help Ted Cruz become the President?).  Tribe notes the irony of Cruz, a very conservative man, having to argue for a liberal reading, and he adds:

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.

Professor Tribe is a very liberal thinker, a champion of such causes as gay rights, and I have much admired him through the years.  My area of expertise is commercial law, and I rightly hesitate to criticize the good Professor’s statements about Cruz and the “natural born citizen” issue.  But I suspect that Tribe is mostly having some fun at Cruz’s expense.  In the Boston Globe article Tribe touches on the legal issues that are highly likely to prevail in Cruz's favor if the Supreme Court became involved, and he admitted as much while poking the bear with the remote possibility of a bad outcome or at least the cloud that might hang over his head until the Court had cleared up the whole mess.

Tribe well knows what Congress itself concluded in 2011 when it generated a study of the issue by lawyers at the Congressional Research Service and produced at detailed 50 page legal analysis.  That report definitely found that any person born outside the United States who had at least one parent who was a United States citizen by birth qualified as a “natural born citizen” and therefore was eligible to become President [see http://fas.org/sgp/crs/misc/R42097.pdf].

The reason is that “natural born citizen” was a legal term to the founding fathers, and for them it had an established meaning that came from British law.  Britain had had to deal with the question of whether children born to British subjects living abroad were really British citizens and hence “native born” though not birthed on British soil.  The answer, from both common law dating back to the 1300s and by statute, was yes: all those born on British soil were “native born” was well as those born of a British father living abroad.  Thus one could be a “native born citizen” at birth or by birth.  The United State’s first Congress enacted a statute saying the same thing, but not limited to the father only, and subsequent revisions of that statute exist to this day.  

What the term “natural born citizen” excludes are naturalized citizens, thus making damn sure of excluding the progeny of King George and other foreigners.  Under current law, 8 U.S.C. §1401(g), someone born abroad (like Ted Cruz) would be a “natural born citizen” if one parent had been a citizen at birth, had resided in the United States for at least five years, two of which had to occur after the parent was fourteen. Ted satisfies all of that.

This statute would, however, cut out someone like former California Governor Arnold Schwarzenegger, since he was born in Austria of two Austrian parents.




The smart thing to do would be to change the Constitution to make all this clearer, and, in fact, now that there is no fear of King George causing trouble, what would be wrong with naturalized citizens like Schwarzenegger becoming President?  Such an amendment would not likely be controversial, and might sail through even our current Congress and quickly secure the needed votes from the states.

In any event, it seems clear that Ted Cruz is eligible to be President of the United States in the legal sense.  Whether he’s eligible in the minds of the voters is a very iffy question.  He wouldn’t get my vote even if he were the only candidate running, but I’m influenced by things like Ted’s willingness to attend evangelical events at which a pastor urges that all homosexuals be put to death, and then applauds when the pastor is done spewing forth such hatred.




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Related Posts:

“A Guide to the Best of My Blog,” April 29, 2013;http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html

 “Supreme Court Overturns Roe v. Wade,” August 17, 2012;http://douglaswhaley.blogspot.com/2012/08/supreme-court-overrules-roe-v-wade.html

“Killing the Filibuster and Letting the Majority Rule in the Senate,” December 31, 2013; http://douglaswhaley.blogspot.com/2013/12/killing-filibuster-and-letting-majority.html

“The Shame of Republicans in Congress,” March 23, 2015;http://douglaswhaley.blogspot.com/2015/03/the-shame-of-republicans-in-congress.html

 

Why I Love Bernie Sanders’ Ideas, But Hope He Won’t Be the Nominee,” October 30, 2015;


“Go, Ben, Go: Why I Want Ben Carson To Win the Republican Nomination,” November 30, 2015; http://douglaswhaley.blogspot.com/2015/11/go-ben-go-why-i-want-ben-carson-to-win.html#uds-search-results


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