It depends upon what the meaning of the word “is” is.
Bill Clinton is forever associated with legal nitpicking as the result of his famous quote: “It depends upon what the meaning of the word ‘is’ is.” I think his point is substantive, not nitpicking. Clinton had said before a grand jury about Monica Lewinsky: “there’s nothing going on between us.” He used the contracted form of “is” for the present tense, which he took not to mean that there never had been anything going on. The essay that follows discusses the same tense distinction for the word “is” and how that relates to the question of whether John McCain is eligible to become president.
Gabriel Chin laid out the argument that McCain was not a citizen at birth in his paper, “Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship” in the Michigan Law Review’s First Impressions. The point at interest is not so much what Chin argued as what Federal District Judge William Alsup said in his decision on a motion in Robinson v. Bowen regarding McCain’s eligibility. After dealing with the substantive argument over the state of the law when McCain was born in 1936, Judge Alsup added:
In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen.
This gives the paradoxical possibility that McCain was not a US Citizen at the time of his birth, but a citizen at birth today.
Schrödinger’s cat is a thought experiment regarding the uncertainty principle in quantum mechanics. The Wikipedia states it this way:
Schrödinger’s cat: a cat, a flask of poison, and a radioactive source are placed in a sealed box. If an internal monitor detects radioactivity (i.e., a single atom decaying), the flask is shattered, releasing the poison that kills the cat. The Copenhagen interpretation of quantum mechanics implies that after a while, the cat is simultaneously alive and dead. Yet, when one looks in the box, one sees the cat either alive or dead, not both alive and dead. This poses the question of when exactly quantum superposition ends and reality collapses into one possibility or the other.
If John McCain must rely on the 1937 statute for his citizenship, then at birth he was, in the quantum mechanical analogy, both a citizen and not a citizen because it could not be observed at his birth whether or not Congress would pass a future statute making him a citizen at birth. (There are other arguments that McCain was a citizen that do not rely on the 1937 statute.)
The Naturalization Act of 1790
Happily for historical hypothetical foreign-born aspirants to the presidency, the Congress passed a law in 1790 making the children of citizens born overseas “natural born citizens” subject to the proviso that their fathers must have been at one time residents of the United States. Because the proviso applies to events that occur before birth, one can observe the citizenship status of the child at birth by the 1790 Act (which sadly was repealed in 1795).
The Framer’s Intent
Little is known about the Framer’s intent when they added the words “natural born citizen” to the requirements for the American president. One said “not a foreigner” another said to “insure attachment to the country.” A tantalizing account comes from George Bancroft’s History of the Formation of the Constitution of the United States (1884) based either on his interview with James Madison, or some source unknown to us. He wrote:
One question on the qualifications of the president was among the last to be decided. On the twenty-second of August the committee of detail, fixing the requisite age of the president at thirty-five, on their own motion and for the first time required that the president should be a citizen of the United States, and should have been an inhabitant of them for twenty-one years. The idea then arose that no number of years could properly prepare a foreigner for the office of president;
I don’t think that the Framers intended retroactive citizenship at birth, but on the other hand, I also think that John McCain should be considered to have always been an American.
Cruz presents a case not so much different from that of John McCain because his citizenship relies on a statute as well; however, the statute was firmly in place when Cruz was born and so according to US Law, he is a citizen at birth. That fact could have been observed from the start.