Contrary to popular opinion, Ted Cruz was born a US citizen abroad. Are people like him eligible to be president of the United States? I laid out my case for the affirmative side in my article “Natural born, a Dicey proposition: the blogger who came in from the cold” last May. In this article I will consider some objections to my conclusion, not ones from birthers, but my own reservations:
- While the status of persons born in the United States is well-settled for over 100 years thanks to the US Supreme Court decision in United States v. Wong Kim Ark, that case may not be precedent for Cruz. I think that the ratio decidendi in Wong supports my definition of “natural born citizen” and by implication the eligibility of Cruz, but the Wong case is about someone born in the United States, not abroad. There is not, to my knowledge, much case law to rely on.
- Courts have looked to the English Common Law for definitions of terms in the US Constitution, and certainly the Court looked to the English Common Law to figure out the citizenship of Wong Kim Ark. Under English Common Law someone analogous to Ted Cruz would not have been a natural born English subject (although there are statutes that would make him one). The question remains whether the Constitution uses “natural born citizen” to indicate that only persons analogously citizens by the Common Law rule are eligible, or whether it intends a common usage definition of the term for which anyone under the English Common Law rule would qualify (but not exclusively so) as well as any other citizen at birth.
- When the Constitution was ratified, the children of US Citizens born abroad were arguably not citizens at all. So could the Framers and the ratifying conventions have had foreign-born citizens in mind as potential presidents? Still this is tempered by the fact that one of the first things Congress did was to make such persons citizens.
- At least one Framer expressed a concern about someone who was “foreign born and educated” in the context of eligibility for Congress. Such a person, at that time, would probably not have been a citizen at birth.
For me the key point of contention is whether the English Common Law defines the term “natural born citizen” or whether it defines one class of persons who qualify as natural born citizens. The Naturalization Act of 1790 tipped the scales in favor of the latter in my mind. Here’s the section:
And the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States …
Obviously such persons cannot be citizens by the English Common Law, demonstrating that this is not what Congress meant by the term. Members of the First Congress, many of whom were the framers of the Constitution, thought this language appropriate. While five years later the 1790 Act was repealed and replaced by the Act of 1795 that does not use the “natural born citizen,” there is nothing in the historical record to suggest that anyone in Congress thought the wording in the 1790 Act a mistake. (The 1795 Act just says “citizens,” not even “citizens at birth.”)
As for all of the Vattel nonsense, I don’t consider that worth discussing. The United States is not a country whose laws derive from Vattel and his Law of Nations. Our system is English in origin.
So I have shared my reservations, and the reason it took me so long to come to a decision on this question.