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.
------------------------
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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