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Archive | February, 2016

The bogus originalist argument

I have nothing against “originalism,” the judicial view that the Constitution should be interpreted as it was interpreted by those who ratified it way back in 1788, or the contemporaries of its amendments. (I’m open to arguments against the idea.) What I consider bogus is the particular argument being made today, that under the originalist position, Ted Cruz is not eligible to be president.

Here is a very skeletal version of the originalist argument:

  1. Birthright citizenship under the Constitution is established by the appearance of the words “natural born citizen” in the Constitution. That is, one can infer that anyone who is a “natural born citizen” is a citizen.
  2. Natural born citizen is a legal term derived from the English Common Law term “natural born subject.”
  3. Under English Common Law, only persons born within the territory of England were natural born subjects.
  4. Therefore only persons born within the territory of the United States are natural born citizens.

Here are my objections to this argument.

The Constitution does not define citizenship

I do not think that the Framers of the Constitution ever intended that birthright citizenship in the United States was established by the Constitution. I say that for two reasons. First, it would seem to me that if that were their intent, then there would have been a section in the Constitution (as there are in constitutions of other countries) that said plainly: “the Citizens of the United States are ….” All we have is the words on presidential eligibility that presume that there were already natural born citizens. Attorney General Edward Bates said this in his Opinion on Citizenship (1862):

The Constitution itself does not make the citizens, (it is. in fact,made by them.)

James Madison, a principal author of the Constitution, said in a debate over the citizenship of Congressman Smith in 1789:

It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us; but since this has not been the case, let us settle some general principle before we proceed ….

That is, citizenship in the United States was principally defined by the states, not the Constitution, and further when no state statute informed the citizenship of Smith, Madison looked not to the Common Law, but to “general principle.”

Can we actually read the minds of the Founding Generation?

I do not know any text explaining how any Framer of the Constitution understood the term “natural born citizen” much less what a consensus view was, if indeed there even was a consensus view. Given the fact that the English Common Law and English statutes in 1789 had differing qualification of a “natural born subject” I see no justification for concluding that any particular Framer or Ratifier understood one over the other. Some Framers were lawyers, but some were farmers. The court cases we have on citizenship seem to derive only from what lawyers may have thought, and early American lawyers appealed the Common Law when it was all they had. The paucity of statues and authorities does not mean that the Common Law was the intended source.

Dictionary readers might have thought that the term just meant someone was born a citizen [under state law].

Does the English Common Law really define “natural born subject” by place of birth?

While most authorities cite Lord Coke’s opinion on Calvin’s Case for a definition of “natural born subject” there is a respectable minority who would argue that the principle of the recognition of rights of infants born to English subjects abroad is so ancient as to be considered part of the Common Law.

Limiting the definition of “natural born citizen” to the English Common Law is unjustified

The Supreme Court has said on numerous occasions that interpreting terms in the US Constitution requires reference to

  • The English Common Law
  • English institutions at the time of ratification
  • English statutes at the time of ratification

To focus solely on the English Common Law, while tossing aside English Statutes that called subjects born abroad “natural born subjects” is a rather arbitrary decision.


The historical record is insufficient to support the originalist argument. We really don’t know who the Framers would have considered eligible to be president, or even if they would agree among themselves. There can be no doubt that those born citizens in the country are natural born citizens, since the basic provisions of the English Common Law were in force in all of the 13 original states. What we cannot know is whether the Framers intended to restrict eligibility to the home born, or whether their views included the foreign-born children of citizens. We cannot know that the Framers intended that Congress be unable to do what Parliament had done in creating new “natural born” subjects by statute.

Cruz in Alabama and Illinois

Five Trump supporters challenge Cruz in Alabama in Federal Court. Read the story at Plaintiffs are Sebastian Green, Shannon Duncan, Kyle Spears, Jerry Parker and Kathryn Spears. Green v. Cruz is case number is 5:16-cv-00207-HGD.

Illinois board of elections declares Ted Cruz a natural born citizen:

“The Candidate is a natural born citizen by virtue of being born in Canada to his mother who was a U.S. citizen at the time of his birth,” the board said, explaining Cruz met the criteria because he “did not have to take any steps or go through a naturalization process at some point after birth.”

See also:

New article suggests that the Framers didn’t know for sure what “natural born citizen” meant either

A law professor and a historian look at history and conclude that the Framers of the Constitution weren’t all that concerned with precise definitions of citizenship and that it is a mistake to assume that a consensus definition of “natural born citizen” existed then, as it would be to say one exists today on the Internet. Nathan Perl-Rosenthal, assistant professor of history at the University of Southern California, and Sam Erman, assistant professor of law at the USC Gould School of Law write in a piece at History News Network:

These historical arguments … share two underlying premises: that there was a single dominant meaning of “natural born” in early U.S. law, and that we can discern it by reading the constitutional text in context.  Unfortunately, two things that we know about the history of the early American republic make these interpretive assumptions entirely unwarranted in the case of citizenship law.

You can find out what those two things are by reading their article, “Ted Cruz: Is He or Isn’t He Eligible to be President?”.

They assert this interesting idea:

… we should admit that there were two equally persuasive and authoritative versions of the clause’s meaning in the eighteenth century itself.  Since neither side won the argument about what it meant in the eighteenth century, the final decision rests with us.

If you are keeping score on scholars for Cruz, chalk up two more in the “eligible” column.

On another topic, I was chatting with one of my buddies who is an attorney this afternoon. He went to Harvard and had Laurence Tribe as one of his teachers. (He calls him “Larry.”) He was a former federal prosecutor and now is a legal researcher. I asked him of Cruz was eligible, and he replied, “unfortunately, yes.”