The issue of whether Ted Cruz is constitutionally eligible to be president could not be more bogus. He is. Case closed.
I say this as someone who could scarcely be more concerned about the prospect of President Cruz. So concerned, in fact, that I have concluded, after much “angsting”, that President Trump would be preferable, given that nightmare choice. But notwithstanding Trump’s typically ill-informed and situational insinuations (he didn’t see any problem with Cruz having been born in Canada before Cruz posed a real threat), the constitutional requirement that the president be a natural-born citizen does not disqualify Cruz.
Article II, Section One, Clause 5 of the Constitution, setting out minimum requirements for the presidency, does not define the meaning of “natural-born citizen,” a limitation intended, as John Jay wrote in a letter to George Washington, to “provide a strong check to the admission of Foreigners into the administration of our national Government.”
Taken in a vacuum, “natural-born” is arguably ambiguous. It could be interpreted to apply to all who are citizens at birth, rather than those required to go through a naturalization proceeding to attain citizenship. Or — although this seems the more tortured analysis — it could be interpreted to exclude those born outside the physical jurisdiction of the United States to citizen parents. That would include Cruz, who was born in Canada to a U.S citizen mother, and, therefore, automatically a citizen himself.
But even the strictest of constructionists do not argue for such a blinders-on approach. There is scant evidence of debate among the framers about the meaning of the term. Jay used it, underlined the word “born,” and didn’t clarify what he meant. Still, some of his own children were born abroad, and it makes little sense to assume he meant to exclude them from the presidency.
But previous interpretations from British jurisprudence and near contemporaneous legislation enacted by the new U.S. Congress all argue in favor of an interpretation that natural-born refers to anyone who is a U.S. citizen at birth, no matter where he or she was born. (Not that the framers were contemplating female presidents.)
The best analysis of this topic comes from two former U.S. solicitors general — Neal Katyal, who served President Obama, and Paul Clement, who worked for President George W. Bush — writing in the Harvard Law Review forum. They conclude:
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 [Panama] Canal Zone or the continental United States.
The first source of interpretation involves the use of the phrase “natural-born” in British common law, which recognized that children born to subjects outside the empire were themselves “natural-born” subjects.
Second, just three years after the Constitution was drafted, the First Congress weighed in. The Naturalization Act of 1790 provided that “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.”
As Katyal and Clement note, that evidence is “particularly persuasive because so many of the framers of the Constitution were also members of the First Congress. That is particularly true in this instance, as eight of the 11 members of the committee that proposed the natural-born eligibility requirement to the Convention served in the First Congress and none objected to a definition of ‘natural-born citizen’ that included persons born abroad to citizen parents.”
The natural-born requirement was not an obstacle to the candidacy of Barry Goldwater, born in Arizona before it was a state. It was not an obstacle to George Romney, born in Mexico to U.S. citizen parents. It was not an obstacle to John McCain, born in the Canal Zone.
There are ample reasons to oppose a President Cruz. The place of his birth is not among them.