Texas Senator Ted Cruz is expected to enter the republican presidential primary for the 2016 election cycle and much speculation revolves around the fact that he was born in Canada. Most armchair constitutional enthusiast, both liberal as well as some conservative, argue that the eligibility of Ted Cruz is flawed because he was born outside of the U.S. and hence is ineligible to run for or become U.S. president. They base this assumption on the phrase found in the constitution which states that a U.S. president must be a “natural born citizen.”
Many conservatives who have spent the past 5+ years attempting to prove that current U.S. President Barack Obama is not a natural born citizen also applaud Cruz’s actions as a jr senator and would most likely embrace his candidacy otherwise – but they must now look into the mirror and choose whether to support a candidate which seems to have similar dubious citizenship circumstances as Obama or support another, less conservative – “safer” candidate.
At the time of birth both Obama and Cruz had mothers who were U.S. citizens but fathers who were not – although Rafael Cruz has since become one – recently in 2005 which will conveniently, for Ted, afford his father 10 year citizenship status at the time of Ted’s bid for the presidency. This is a crucial milestone for the senior Cruz to accomplish prior to his son’s running for president.
It’s well known that Cruz was born in Canada and to many who have claimed ineligibility on behalf of Barack Obama it’s widely believed that he was born in Kenya – a contradiction to the widely held legal concept that he was born in Hawaii. Legally speaking, it’s accepted by those who make and enforce the rules – that Obama is indeed a native of Hawaii and not Kenya but his birth credentials have been challenged in numerous courts on numerous occasions and the end result has always been the same: crickets. No judge in the land will even agree to rule on the matter and that fact should give conservatives who support Cruz much optimism that he can and will run – so perhaps that in some small way is vindication and consolation for the hard work which ‘birthers’ have underwent; they may not have removed Barack Obama from office as they intended – but their legal plight has created an entire arsenal of legal cases to reference when defending Cruz’s eligibility status. A judge and/or court would be hard pressed to take seriously the demands of democrat ‘birthers’ charging that Cruz is ineligible in light of the past 5 years of yawning and dismissing of similar cases lodged against Barack Obama.
Natural Born Citizen Defined
The phrase natural born citizen comes from the English common law and in particular came from Calvin’s Case, a 1608 decision which defined the term as including anyone who, by natural law, owed duties to and was protected by the monarchy. The English common law afforded anyone born on English soil, regardless of the citizenship statuses of their parents, to be granted full citizenship.
The term natural born citizen is found in the U.S. constitution once but is not accompanied by a definition:
Article II Section 1 Clause 5:
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.
Amendment XIV Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
The only other legal U.S. statute to attempt to define the term was The Naturalization Act of 1790. That Act established the United States citizenship status of children of U.S. citizens born abroad, without the need for naturalization: “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.” Those words refute modern day opinions that natural born citizen refers only to those physically born here. Those who insist on “U.S. soil births” only – also typically insist that their reasoning is based on the wishes of the framers of the constitution but they fail to base their opinions on the only legally binding document which has ever defined the phrase natural born citizen which is in fact the Naturalization Act of 1790 – brought into existence just 14 years after the ratification of the U.S. constitution.
In 1790, when that naturalization act was written and legalized, the framers of the constitution were still very much alive and very much involved in the drafting and legalizing of such documents as the above mentioned statute. Had they fundamentally disagreed with the wording or concept it would most likely not have become law. Our first President, George Washington, had been in office for barely a year when that Naturalization Act was drafted and signed into law. You’d better believe had Washington objected to it’s wording or fundamental meaning I wouldn’t be writing about it right now. This fact sheds the brightest light of our entire history on what the founding fathers themselves meant by natural born citizen and who they wished to be included into that esteemed group. It didn’t, as many theorists demand, mean that a person must be born onto U.S. soil – it meant that a person must be born to U.S. citizen parents.
Just 5 years later in 1795 that Act was superseded by the Naturalization Act of 1795 which did not define “natural born citizen” status – and no actual legislation since ever has. The legislation currently referenced regarding nationality and citizenship is the Nationality Act of 1940. That Act provides experts with the opinion that Cruz was in fact a U.S. citizen at birth since his mother was a U.S. citizen who lived in the U.S. for more than 10 years. The words of that document may be in a different arrangement, but the sentiment is exactly the same as the original Act of 1790 in that children born abroad to U.S. citizens are themselves also U.S. citizens.
The Congressional Research Service, in both 2009 and 2011, in light of the controversy surrounding the eligibility of U.S. President Barack Obama, did make an attempt to define natural born. In 2011 the CRS issued a report titled Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement which states:
The Constitution sets out three eligibility requirements to be President: one must be 35 years of age, a resident “within the United States” for 14 years, and a “natural born Citizen.” There is no Supreme Court case which has ruled specifically on the presidential eligibility requirements (although several cases have addressed the term “natural born” citizen), and this clause has been the subject of several legal and historical treatises over the years, as well as more recent litigation. The term “natural born” citizen is not defined in the Constitution, and there is no discussion of the term evident in the notes of the Federal Convention of 1787. The use of the phrase in the Constitution may have derived from a suggestion in a letter from John Jay to George Washington during the Convention expressing concern about having the office of Commander-in-Chief “devolve on, any but a natural born Citizen,” as there were fears at that time about wealthy European aristocracy or royalty coming to America, gaining citizenship, and then buying and scheming their way to the presidency without long-standing loyalty to the nation.
The Supreme Court, however, has never ruled on the meaning of the natural born citizenship requirement. In the absence of a definitive Supreme Court ruling—or a constitutional amendment—the parameters of the clause remain uncertain.
This is problematic, especially for courts which have been inundated by people filing to have elected officials disqualified from office – especially the sacred office of U.S. president. As previously mentioned, courts rarely, if ever, entertain such charges and have to date never disqualified any candidate or seated elected official.
Others Who Have Had Dubious Citizenship Factors
Many framers of the constitution, our founding fathers, by the token which most modern day eligibility enthusiasts perceive as natural born citizens, were in fact not. Accurately, none of the original 7 presidents of the United States, including(in order of their presidency) George Washington, John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and Andrew Jackson – were actually born on U.S. soil but rather in British colonies which once comprised the eastern U.S. before the constitution was ratified.
Quite a list of heavy hitters of American political antiquity, wouldn’t you agree? Yet none of them, when held to the same eligibility standards that many today expect to be enforced, were eligible to become leaders of the free world, which they conspired to create.
This first generation of U.S. presidents wrote themselves a free pass known as a grandfather clause – dismissing the natural born citizen requirement, or rather postponing it, until the first crop of natural borns could reach the age of presidential eligibility. The term natural born and it’s enforcement didn’t commence until 8 presidents into our nations history and it was in fact Martin Van Buren, born December 5, 1782 in the village of Kinderhook, New York, who is considered to be the first U.S. president to fully satisfy such eligibility requirements.
Next on the dubious eligibility hit parade is our nations 21st President, Chester A. Arthur, who was also born into a one-citizen parental situation. His father, William Arthur, was born just outside the village of Cullybackey, County Antrim, Ireland. Arthur’s mother, Malvina Stone, was born in Vermont. It’s speculated that Arthur was naturalized in New York State and became a United States citizen in August 1843 but many believe Arthur destroyed his nativity documents in an attempt to protect himself from scandal.
Presidential hopeful Barry Goldwater was born in Phoenix in what was then the Incorporated Arizona Territory. Goldwater ran for president in 1964 and did face controversy over his citizenship status.
Four years later in 1968 George Romney ran for the Republican party presidential nomination even though he was born in Mexico to U.S. parents. Romney was legally challenged on those grounds.
Former vice president Al Gore wasn’t born in the United States either but rather in Washington, D.C. which is not a U.S. state. For many this is laughable but for those who insist on dissecting each dot and comma of the constitution attempting to verify or disqualify eligibility of a candidate – it may be of interest to know that Washington, D.C. doesn’t live up to the standards of those who insist natural born citizens are only born on U.S. soil.
Sound far fetched? It isn’t. Matter of fact Washington, D.C. is so far detached from the actual United States that residents who live there have no voting representation in the Congress or Senate. D.C. residents do elect a non-voting delegate to the House of Representatives and to the Senate who may sit on committees, participate in debate, and introduce legislation, but as reference to just how low on the pole D.C. sits – those delegates aren’t allowed to vote on the House or Senate floor and neither chamber seats the District’s elected “shadow” representative or senators.
Sound like a place an honest-to-goodness natural born citizen would hail from? A place so disconnected from our society that they have zero representation? Yet there was never a peep of eligibility doubts regarding Al Gore and it’s because Gore was born to citizen parents.
It may seem inconceivable but not only are those born in the territory of Washington, D.C. eligible to be president – so are those born in Guam, Puerto Rico, and the U.S. Virgin Islands – who are all legally defined as natural born citizens and are, therefore, also eligible to be elected president.
John McCain was born at Coco Solo Naval Air Station in the Panama Canal Zone. Most people contend that because his father was stationed there for military service that McCain’s citizenship was never questioned but a lawsuit filed by Fred Hollander in 2008 alleged that McCain was actually born in a civilian hospital in Colon City, Panama – not on a military base as McCain claimed – and was therefore ineligible to run for or become president. In April 2008 amid challenges to McCain’s eligibility to serve as president, the Senate passed a resolution declaring that “John Sidney McCain, III, is a ‘natural born Citizen” under Article II, Section 1, of the Constitution of the United States.”
Current Legislation Governing Citizenship
As reinforcement for the argument that the Naturalization Act of 1790 decided, ultimately, the definition of natural born citizen as was intended by our founding fathers I will reference a memorandum to Congress dated just 5 years ago on April 3, 2009, written by the Congressional Research Service (CRS), which states:
Considering the history of the constitutional qualifications provision, the common use and meaning of the phrase “natural-born subject” in England and in the Colonies in the 1700s, the clause’s apparent intent, the subsequent action of the first Congress in enacting the Naturalization Act of 1790 (expressly defining the term “natural born citizen” to include a person born abroad to parents who are United States citizens), as well as subsequent Supreme Court dicta, it appears that the most logical inferences would indicate that the phrase “natural born Citizen” would mean a person who is entitled to U.S. citizenship “at birth” or “by birth”.
Just like nearly all other recent documents – this one also leans on the Naturalization Act of 1790 to base it’s determination. But this still doesn’t address the one-citizen-parent issue – are those born abroad to just one U.S. citizen parent considered natural born citizens? This is the real question at the very heart of the matter for Cruz. The aforementioned documents prove what the founding fathers intended for those born abroad – but did they intend to include a requirement that both parents be citizens?
According to the U.S. Department of State Foreign Affairs Manual – Unclassified Volume 7 -Consular Affairs(PDF) which ALSO CITES the 1790 Act – children born into a one-citizen-parent situation were granted U.S. citizenship:
7 FAM 1131.2 Prerequisites for Transmitting U.S.Citizenship
Since 1790, there have been two prerequisites for transmitting U.S. citizenship to children born abroad:
(1) At least one natural parent must have been a U.S. citizen when the child
was born. The only exception is for a posthumous child.
(2) The U.S. citizen parent(s) must have resided or been physically present in the United States for the time required by the law in effect when the child was born.
It took me 3 days to find that little ditty and it was worth every minute because that legal snippet states – with exact reference BACK to the original Naturalization Act from 1790 – that SINCE(very important word) 1790 there has been one continuous prerequisite for TRANSMITTING citizenship from parent to child born abroad and that is: at least one parent – NOT TWO – has to be a U.S. citizen. The code above defines not just the government’s current position, but their position spanning more than 220 years of American history – and the word since is the key to understanding that. Since infers that it’s been their position since 1790 and as of 1998 it was still their position.
Cruz’s mother had been a U.S. citizen her entire life prior to moving to Canada for a brief period to work with Rafael in the oil fields there. They returned home to the States in 1974 with then 3 year old Ted after the market became unstable and they’ve been here ever since. She fits the criteria stated above.
No the verbiage doesn’t mention ‘natural born’ but all things considered – we are running out of legal rope to base challenges on and the one remaining fiber is once again based on someones interpretation of what U.S. citizen means in the above snippet versus what they also think natural born means. A court of law doesn’t care about our opinions – only the opinions of the majority of a congress or senate would sway a court under these tedious legal circumstances – and because of that fact we are now officially out of rope for challenges.
Experts Agree: Cruz is Eligible
The controversy will continue with passionate advocates on both sides of the natural born issue. A scholarly consensus is emerging, however, that anyone who acquires citizenship at birth is natural born for purposes of Article II and Cruz does meet that criteria. According to Gabriel “Jack” Chin, a professor at the University of California, Davis, School of Law and a graduate of Wesleyan University and both Michigan and Yale law schools, who has written extensively about immigration, citizenship & race and law – Cruz is very much eligible to run for president:
Judges appropriately hesitate to overrule the democratic process. If Cruz runs and is challenged, the courts will almost certainly rule that a random voter has no standing to challenge his candidacy. Other candidates are not likely to sue, but rather will focus on trying to win the election.
Judges will recognize that, at bottom, it is hard to find a legitimate reason that Ted Cruz or any other person in his situation should be denied the presidency if the people of the United States want him.
The ultimate modern day criteria for whether a person is eligible to be president isn’t found by splitting the atoms of centuries old documents, but rather, according to Chin, based on “if the people of the United States want him. We, the People of the United States, are perfectly capable of sensibly choosing presidents.
Sarah Helene Duggin, a professor of Law and Director of the Law and Public Policy Program for the Columbus School of Law at the Catholic University of America who has authored several academic articles on the natural-born citizenship provision also agrees that based on the the 1790 Naturalization Act as well as Article II of the constitution:
This consensus rests on firm foundations. First, given Jay’s letter and the language of the 1790 naturalization act, it seems evident that the framers were worried about foreign princes, not children born to American citizens living abroad. Second, the 14-year residency requirement Article II also imposes as a presidential prerequisite ensures that, regardless of their place of birth, would-be presidents must spend a significant time living in the United States before they can run for office.
Finally, the natural born citizenship clause is both an anomaly and an anachronism. The way in which the clause differentiates among United States citizens is contrary to the overall spirit of the Constitution; the risk that foreign nobility will infiltrate our government is long past; and place of birth is a poor surrogate for loyalty to one’s homeland in our increasingly mobile society and our ever more interconnected world. The best solution would be to amend the Constitution, as many legislators on both sides of the aisle have proposed over the years. In the absence of an amendment, the clause should be narrowly interpreted.
Natural Born Conclusion
Challenges to a potential candidates natural born citizenship credentials are unlikely to ripen until a nominee is chosen, or perhaps even elected, and federal courts will always be reluctant to delve into the merits of those challenges based on partisan political grounds. The only entity which can effectively challenge a candidate’s eligibility to run for and become U.S. president is the U.S. Congress and any such challenge, if expected to be taken seriously by a court of law, would need to occur prior to that candidate tossing his hat in the ring.
According to the oldest naturalization act which was passed into law during the first year of George Washington’s Presidency by a congress comprised of most of the original framers of the constitution – the Naturalization Act of 1790 states very clearly that persons born to U.S. citizens abroad are to be considered natural born U.S. citizens.
Unless congress challenges Cruz prior to him becoming a nominee – and the above report lends insight as to why they won’t – then his candidacy is nearly assured.