There may be 10,000 terrific reasons why Ted Cruz should not be president. But the contention that Cruz is not a “natural-born citizen” of the United States is not one of them.
The genius of the irrelevant smear, Donald Trump, wastes no opportunity to remind voters that Cruz was born in Canada (his mother was a U.S. citizen and his father at the time was a Canadian citizen and a U.S. green-card holder). “I’d hate to see something like that get in his way,” Trump says. “But a lot of people are talking about it and I know that even some states are looking at it very strongly, the fact that he was born in Canada and he has had a double passport.”
Trump’s trolling is working on constitutional scholars who should know better. Harvard’s famed law doyen, Laurence Tribe, took to the Boston Globe to proclaim, Trump-style, that while he himself has no doubts about Cruz’s eligibility—no siree!—Cruz himself should, since he has promised to appoint “originalist” judges to the bench. “To his kind of judge, Cruz ironically wouldn’t be eligible,” Tribe writes, “because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on U.S. soil to be a ‘natural born’ citizen.” Cass Sunstein, also of Harvard, writes in Bloomberg View that, as of 1787, the British statutes would have required Cruz’s father, not his mother, to be a citizen. In The Washington Post, Mary Brigid McManamon of Delaware Law School goes even further, proclaiming flatly that “Donald Trump is actually right about something.”
I can’t resist thinking that the chance to twit the ever-pompous Cruz has led these scholars into sloppy thinking. There’s no evidence for Tribe’s sweeping claim that, at the time of the framing, “natural-born citizenship” required birth on American soil. That wasn’t a heritage from English law; as early as 1340, Parliament had proclaimed that children of two British subjects born abroad were British subjects by birth. William Blackstone, the great English jurist, had written in 1765 that, thanks to acts of Parliament, “all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”
McManamon quotes Blackstone but for some reason omits the language above. Sunstein descends to silly quibbling; he claims that the British statutes “suggest only that a national legislature can treat certain people, for purposes of citizenship, as if they were ‘natural born’—not that they are, in fact, natural born.”
Or, to put it another way, if you ignore the evidence, omit crucial parts of it , or torture its language, you can convince yourself that Cruz somehow would have had trouble qualifying for the presidency.
Or, wait, maybe 1789 isn’t what mattered.
The “natural-born” citizenship clause probably didn’t apply in 1789.
The United States of America was, at most, 13 years old that year. The Founders were eligible for the presidency because they were citizens “at the time of the Adoption of this Constitution.” Or maybe it was because they had been born citizens of one of the colonies that later became the United States. So, which law to apply? 1340? 1787? 1790, when the first Congress (which included 20 former delegates to the Philadelphia Convention, and 49 delegates to state ratifying conventions) proclaimed that foreign-born children of citizens “shall be considered as natural born citizens”? 1795, when a revised Nationality Act said, instead, that these children “shall be considered as citizens”? 1836, when Martin Van Buren became the first clearly “natural-born” citizen of the United States to enter the White House?
What’s happening to us?
It’s a shame to see Trump dragging heretofore serious intellectuals down to his level. This quest to find and apply dead law is a fool’s errand, and the recent op-eds are sloppy at worst and futile at best.
Certainly it’s possible to construct a plausible, nuanced view of what the founding generation might have thought. Two former heads of the Office of the Solicitor General—Neal Katyal, who served under Obama, and Paul Clement, under George W. Bush—do that in a recent post on Harvard Law Review Forum. They argue that “the Constitution is refreshingly clear on these eligibility issues.” They conclude that “the phrase ‘natural born Citizen’ in the Constitution encompasses all such citizens from birth.” Michael Ramsey of the University of San Diego, a careful scholar and a leading light of the serious “originalist” movement, argues in a recent paper that “[t]he proof . . . is much more difficult than conventional wisdom supposes.” But, he, too, concludes that “the best reading of the original meaning of the eligibility clause is that any person defined as a citizen at birth by the Constitution or a statute is eligible to the presidency.”
All three agree on the crucial point. Under the Constitution, it does not matter whether the framing generation would have found Cruz eligible. What matters is the law today—and that law is §301 of the Immigration and Nationality Act, in effect when Cruz was born in 1970. It provides that “a person born outside the geographical limits of the United States. . . 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 . . . for . . . not less than five years, at least two of which were after attaining the age of fourteen years” is a citizen of the United States.
The Constitution is not a séance. We are not governed by the dead. As in many other areas, the living set the rules of citizenship. And today, for better or worse, Ted Cruz is one of “we the people” as surely as Donald Trump.
We’re stuck with both of them.