The question mark floating over the head of Ted Cruz has created quite a stir in the media, and last night during the Republican Presidential Debate in Charleston. Undoubtedly the stir in the media has promoted citizens to contact their elected officials who look to sources like the Congressional Research Service for background information and legal guidance.
The Congressional Research Service released an update yesterday to its 2011 report on presidential eligibility by Jack Maskell, incorporating new material relevant to Ted Cruz (not mentioned by name). Here is the text of the revised “Qualifications for President and the ‘Natural Born’ Citizenship Eligibility Requirement.”
The summary has changed little from the earlier version with Mr. Maskell concluding:
Although the eligibility of U.S. born citizens has been settled law for more than a century, there have been legitimate legal issues raised concerning those born outside of the country to U.S. citizens. From historical material and case law, it appears that the common understanding of the term “natural born” in England and in the American colonies in the 1700s included both the strict common law meaning as born in the territory (jus soli), as well as the statutory laws adopted in England since at least 1350, which included children born abroad to British fathers (jus sanguinis, the law of descent). Legal scholars in the field of citizenship have asserted that this common understanding and legal meaning in England and in the American colonies was incorporated into the usage and intent of the term in the U.S. Constitution to include those who are citizens at birth.
I am glad to see that the revised report takes note of Mr. Dicey’s definition of “natural born subject” cited in the Wong decision, but without doing a line by line comparison, I can’t say much more about what has changed, since the material is rather familiar.
The clear emphasis of the argument is that the strict Common Law criteria of a natural born citizen is not what applies to the Constitution, but rather the Common Law plus longstanding English statutory law. I think Mr. Maskell marshals a strong argument in support of that position, and I am taking that view more seriously that I had before.
My personal opinion is that looking to the English Common Law is not the correct originalist interpretation, but I can hardly fault Mr. Maskell for accurately reporting the majority opinion of authorities and the rather direct findings of the Supreme Court. Disagreeing with those is the privilege of the blogger.
The introduction suggests that additional updates could be made to the CRS report.
Note: Readers who would prefer a direct download link to the report rather than getting it from Scribd, may do so here.