ACRU

An Un-Naturally Born Non-Controversy

The Lady Justice Statue in Dublin, Ireland

This column by ACRU Policy Board member Hans von Spakovsky was published January 8, 2016 by Conservative Review.

Some have questioned the eligibility of one of the candidates seeking the Republican presidential nomination —- Sen. Ted Cruz (R-TX) —- to be President. Although this issue has never been tested in court, there seems little doubt that he meets the requirements of the Constitution.

Article II, Sec. 1 of the Constitution sets out three qualifications to be president. You must be 35 years of age; have been a resident of the U.S. for 14 years; and be a “natural born Citizen.” The reason such questions are being raised is because Senator Cruz was born in Canada, not the United States. Ironically, one of those raising this question is Sen. John McCain (R-AZ), the Republican standard-bearer in the 2008 election, who was born on a U.S. military base in the Panama Canal Zone.

Senator McCain was eligible to run for president for the same reason that Senator Cruz is: Each had at least one parent who was a U.S. citizen at the time of his birth —- and that makes them both “natural born” citizens.

This is neither novel nor controversial. Indeed, Senator McCain’s colleagues on both sides of the aisle unanimously passed a resolution in 2008, sponsored by Sen. Claire McCaskill (D-MO), stating that despite his birth in the Panama Canal Zone, McCain was a “natural born Citizen” as defined under Art. II, Sec. 1, of the Constitution and therefore “eligible to be President.” This should also come as a relief to the sons and daughters of American citizens in the U.S. military who are born abroad —- they are also all eligible to run for president, as are many other American citizens (including my wife) who happen to have been born abroad.

The Constitution, federal law, and the historical understanding of the Framers, as well as prior British legal traditions and law, all support this view. In a recent article in the Harvard Law Review, two former U.S. Solicitor Generals, Paul Clement (who served under President George W. Bush) and Neal Katyal (who served under President Barack Obama) stated:

All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.

Thus, former California Gov. Arnold Schwarzenegger would not be eligible to run for president because the Austrian native had to go through the naturalization process to become a U.S. citizen.

Certainly the Framers of the Constitution held this view of “natural born” citizen. They had a deep understanding of British common law and applied its precepts, particularly as explained in Blackstone’s Commentaries, throughout the Constitution. The U.S. Supreme Court in Smith v. Alabama (1888) recognized that “the interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

Senator Cruz meets all three qualifications in the Constitution to be the president of the United States if the American people make that choice.

One of those precepts of British law was that children born to British citizens anywhere in the world, even outside the dominions of the British Empire, were “natural born” citizens of the Empire who owed their allegiance to the Crown. This historical understanding is explained in great detail by the Supreme Court in a well-known 1898 case, U.S. v. Wong Kim Ark.

The First Congress, which included many of the Framers of the Constitution, codified this view of a natural born citizen. A mere three years after the Constitution was drafted, they passed the Naturalization Act of 1790, which specified that the children of U.S. citizens born “out of the limits of the United States, shall be considered as natural born Citizens.” The modern version of this Act is found at 8 U.S.C. §1401. It contains a list of all individuals who are considered “nationals and citizens of the United States at birth.” Paragraph (g) includes:

A person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

Ted Cruz was born in Canada in 1970; his mother, who was a U.S. citizen by birth from Delaware, was in her 30s at the time. She met Cruz’s father, who was born in Cuba, as a student at Rice University. These facts show that Cruz’s family background clearly meets the standard set out in the federal statute for being a natural born citizen who did not have to go through any naturalization process to become a citizen. That was also the case for Senator Barry Goldwater, who was born in Arizona before it became a state, and Governor George Romney, who was born in Mexico.

The bottom line is that Senator Cruz meets all three qualifications in the Constitution to be the president of the United States if the American people make that choice. The same is true of my wife, who was born in Manila. Her father, whose family had been in America since shortly after the Pilgrims got to Massachusetts, was temporarily working abroad for an American company —- just like Ted Cruz’s father.

My wife is not likely to run for president, but there is no question that she —- like Ted Cruz, Barry Goldwater, George Romney, and John McCain —- is eligible to be president and to swear an oath to “preserve, protect and defend the Constitution of the United States.”