Because presidential elections are never-ceasing Sisyphean struggles from whose cruel grip we can never fully escape, Sen. Ted Cruz (R-Tex.) is already gearing up to run for president in 2016. So, obviously, Cruz — who was born in Calgary to an American mother — released his birthday certificate Sunday, because that's apparently what you do when you want to run for president these days.
Under Canadian law, anyone born in the country is automatically a Canadian citizen, unless their parents were foreign diplomats (and Cruz's were not). So Cruz, much to his surprise, turns out to be a dual U.S.-Canadian citizen.
That almost certainly doesn't make him ineligible to become president under the prevailing interpretation of Article Two, Section 1 of the Constitution, which restricts the presidency to "natural born Citizen[s]." But it's totally insane that we're even thinking about this. The natural-born citizenship clause is almost mind-numbingly stupid and it needs to be done away with.
Few other countries do it
A good first step when evaluating a policy like the natural-born citizenship clause is to see if other countries do it too, and if not, if they've suffered any consequences from that failure. And sure enough, very few other developed countries have requirements at all like this one:
• Australia has no natural-born citizenship requirement. Indeed, the late Prime Minister Chris Watson was born in Chile; he didn't dispute this, but claimed that he was of Scotch background and born to parents living in New Zealand, when his father was in fact a Chilean citizen. Australia does require that all members of the House of Representatives — of which the Prime Minister has all but once been a member — and the Senate — in which the one other PM sat, before resigning and becoming a member of the House — be only citizens of Australia, and not hold dual citizenship.
• Austrian chancellors must be eligible to serve in the National Council (or Nationalrat, the lower house of parliament), and as such must be citizens — naturalized or otherwise — 18 years or older who are eligible to vote and have been incarcerated for no more than one year.
• Canada's prime minister must, in practice, be eligible to sit in the House of Commons, and thus must be a qualified voter aged 18 or older. There isn't actually a requirement that the prime minister sit in the House of Commons but in practice, no prime minister since the 1890s has not sat in the House or else taken action to join the House as soon as possible (such as by running for a seat in the next election or in a by-election). But in any case, there's no requirement that the prime minister be born in Canada.
• Denmark's prime minister traditionally comes from the Folketing, the nation's unicameral parliament. To be a member, one must be a Dane 18 years old or older who has not been convicted of an "act which in the eyes of the public makes the candidate unworthy of being a member of the Folketing." Again, no native-born citizenship requirement
• Finnish prime ministers are traditionally members of parliament, which just requires one to be able to vote (basically, to be 18). But to be a minister, including prime minister, one must just be, "Finnish citizens known to be honest and competent." Again, no mention of a natural-born requirement.
• Any French citizen aged 23 years or older is eligible to be president, regardless of place of birth.
• Germans who have reached the age of majority (18) are eligible to become members of the Bundestag, the lower house of parliament. Traditionally, chancellors come from the Bundestag, but all that's actually required is the majority support of the body. No other limits — such as national-born citizenship — are imposed.
• Japanese prime ministers must be members of one of the two houses of the Diet, which requires one to be at least 25. They must be Japanese nationals, but there is no natural-born citizen requirement.
• Swedish prime ministers traditionally come from the Riksdag, the country's unicameral legislature. To be elected, one must only be eligible to vote — that is, to be a citizen 18 years or older. There is no natural-born citizenship requirements.
• The United Kingdom has no formal requirements on who can be prime minister, as the Queen can appoint whoever she likes to the post, but in practice the leader of the ruling party or coalition in the House of Commons gets the job. To be in the Commons, one must be at least 18 years old and a British citizen or a citizen of another Commonwealth country or Ireland. So if noted Canadian Sarah Kliff wanted to, she could totally become Prime Minister of the UK. Ted Cruz too.
The rule isn't totally unheard of. Mexico has it, as do Afghanistan and Argentina. But it's pretty rare in developed countries. And last I checked, France and Germany weren't being destroyed by the rule of foreigners with dual loyalties, or whatever it is that the natural born citizenship clause is meant to prevent.
It rules out too many people
Cruz isn't alone. There are three other sitting senators who were born outside the United States: Sen. John McCain (R-Ariz.), who was born in the Panama Canal Zone to American parents; Sen. Michael Bennet (D-Colo.), who was born in New Delhi, India, where his father was working as an aide to the U.S. ambassador; and Sen. Mazie Hirono (D-Hawaii), who was born in Fukushima, Japan to a mother who was an American citizen.
All of those are cases where the existing law shouldn't prevent them from assuming the presidency should they win, and in McCain's case a federal judge actually ruled during the 2008 presidential race that it is "highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen." And past presidential candidates with similar issues probably would have made it through. George Romney was born in Mexico to U.S. citizens, which wouldn't have stopped him from becoming president had his 1968 presidential run succeeded. But their candidacies were complicated unnecessarily by the clause.
Moreover, there are plenty of other cases where foreign-born politicians have been ruled out of the presidency for no reason other than their nation of origin. Former Michigan Gov. Jennifer Granholm (D) was born in Vancouver, and thus was ruled out of contention as a VP contender in both 2004 and 2008. Former California Gov. Arnold Schwarzenegger's (R-Calif.) Austrian origins made him ineligible to run for president. In March 2007, he had a 60 percent approval rating and had just been reelected by a wide margin, but the popular governor of the nation's largest state — who under any other circumstances would be an obvious presidential contender — couldn't run.
Sen. Orrin Hatch (R-Utah) actually proposed a constitutional amendment repealing that section of the Constitution, with the express intention of making a Schwarzenegger run possible. And it wasn't even the first time an amendment has been proposed with a specific person in mind. In 1974, Rep. Jonathan Bingham (D-N.Y.) introduced an amendment repealing the provision with a possible candidacy by then-Secretary of State Henry Kissinger in mind.
And that's just looking at incidents in recent memory. Between Carl Schurz, Robert Wagner, and Alexander Hamilton (see update below), it isn't hard to name potentially excellent presidents who were barred from office due to the natural-born citizenship clause. Worse, the University of Texas - Austin's Jordan Steiker and Sanford Levinson, along with Yale's Jack Balkin, have noted (working off of prior work at the University of Minnesota), the wording of the clause confines the presidency to either natural-born citizens or citizens of the United States at the time the Constitution was the adopted. Virginia ratified the Constitution after it had taken effect, which occurred when New Hampshire became the ninth state to ratify it.
That means, Steiker, Levinson, and Balkin argue compellingly, that anyone living in Virginia when the Constitution was adopted was ineligible to hold office. That includes George Washington, Thomas Jefferson, James Madison, and James Monroe. It also includes Andrew Jackson and Zachary Taylor — who were in Tennessee and Kentucky, respectively, when the Constitution was adopted, before either were states — and Martin Van Buren, who was in New York, which ratified the Constitution after adoption. "The only legitimate presidents among the first nine chief executives were John Adams and his son, John Quincy Adams," Steiker, Levinson, and Balkin conclude.
Its rationale makes no sense
Other countries have gotten by fine without a natural-born citizenship requirement and it's denied several very plausible presidential candidates the opportunity to run. Admittedly, there are bigger downsides in the world, but still, if the clause is causing harm, however small, and not doing much for us, it should be junked. So does it have a good defense?
Not really. There's a reason constitutional law professors like Harvard's Randall Kennedy and Yale's Robert Post have called it the single worst provision in the Constitution. The best thing you can get to a rationale for it comes from John Jay, in his letter to George Washington proposing the provision: "Permit me to hint, whether it would not be wise…to provide a strong check to the admission of Foreigners into the administration of our national Governments; and to declare expressly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen."
So the concern is that the command of the army could fall into the hands of those with foreign allegiances. But if this is the goal. the natural-born citizenship requirement is a rather preposterous check. The Secretary of Defense can be a foreign-born citizen, and the Secretary of State has been a foreign-born citizen multiple times, as has the National Security Advisor. One can reach the highest echelons of the military without having been born in the U.S. We have already violated the wish of Jay to prevent the admission of foreigners into the national government. Unless we want to prevent people like Madeleine Albright, Henry Kissinger, and Zbigniew Brzezinski from serving the government again, Jay's logic doesn't really make sense anymore.
Getting rid of the natural-born citizenship clause is hardly the most pressing cause in the world. But at the very least it would spare us the regular hand-wringing about cases like Cruz's, and at best it would get us some good leaders we wouldn't get otherwise. Just get rid of it.
Update: My assertion that Alexander Hamilton was barred from the presidency has been contested on the grounds that he was living in the U.S. at the time of the Constitution's adoption, and thus was eligible. It's not that simple. For one thing, the Articles of the Confederation's rules for citizenship were not that straightforward. But also, he was living in New York at the time of adoption, making him arguably ineligible on the same grounds as Washington, Jefferson, Madison, et al.