I am reminded of 2008 and the issue of John McCain’s eligibility. The unanimous resolution of the Senate, the memorandum of Laurence Tribe and Theodore Olson, and most of the writers in a Michigan Law Review publication came out in support of McCain’s qualifications to be president of the United States, even though he was not born in an incorporated US territory, and he may not even been a citizen at birth but only retroactively. The notable holdout was Gabriel Chin.
This time around we read statements in the news media, such as this March (2015) story at NPR saying Cruz is eligible:
And most legal scholars agree. In fact, two of the best-known Supreme Court lawyers — who are not normally on the same side — make the case that Cruz, as were John McCain, George Romney and Barry Goldwater, is eligible to run.
Neal Katyal, who served as acting solicitor general in the Obama administration, and Paul Clement, who was solicitor general under George W. Bush, wrote earlier this month in the Harvard Law Review that “there is no question” Cruz is eligible.
Despite repeated claims of a near consensus, it seems that we find no shortage of law professors who beg to differ, and the eligibility argument is much more prominent in the media than it was 8 years ago.
Opposed to Cruz eligibility
The most recent to come to my attention is a piece by Robert N. Clinton who is the Foundation Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University. He teaches constitutional law, federal Indian law, cyberspace law and copyrights. His opinion piece appears in US News and World Report in the article titled “Ted Cruz Isn’t a ‘Natural Born” Citizen.” Clinton begins:
Let me join the chorus of opinions by saying that based on the original framework of the Constitution and the 14th Amendment, Sen. Ted Cruz does not appear to be constitutionally eligible to hold the office of the president.
Clinton goes on to say that “Until after the Civil War, it was widely assumed that one was a citizen of the United States if one was a citizen of any state, leaving state law to define national, as well as state, citizenship.” Such may have been assumed, but it was not a universal position. Vice-chancellor Sandford writing in his decision in Lynch v. Clarke held that at the moment the Constitution went into effect, the states lost their role in defining citizenship.
I was pleased to see that Clinton emphasizes something that I said about the two definitions of “naturalization”; however, he claims that the definition involving the operation of a statute is an early definition, and the one defining it as making someone who was once an alien a citizen is recent. I take exception to that. For example Bouvier’s Law Dictionary from 1856 defined the term:
The act by which an alien is made a citizen of the United States of America.
Naturalization is an adoption of one to be intitled by birth to what an Englishman may claim; and where naturalization is, it takes effect from the birth of the party.
A New Law Dictionary and Glossary from 1850:
The act of investing an alien with the rights and privileges of a native or natural-born subject or citizen.
Certainly the First Congress considered the citizens at birth it created “natural born,” and the Supreme Court in 1969 in Rogers v. Bellei called them naturalized.
Harvard law professor Einer Elhauge says in an article at Salon.com, a site with extensive coverage of the issue, that Cruz isn’t eligible. Elhauge writing January 20, 2016, asserts a change in the tide of opinion:
The argument that Ted Cruz is eligible to run for president initially looked strong, then probable but uncertain. But closer examination shows it is surprisingly weak.
Eric Posner of the University of Chicago Law School continues the trend at Salon.com with an argument titled: “Ted Cruz is not Eligible to be President: At least according to the most plausible constitutional interpretation.”
In favor of Cruz eligibility
A third entry is a memorandum by legal scholar Bryan A. Garner that appeared this month in The Atlantic. Garner has been editor in chief of Black’s Law Dictionary since 1994. He presents an engaging essay, that includes these words (footnotes omitted):
So the question boils down to whether blood rights are encompassed in the common-law meaning of natural-born citizen. The 1790 federal statute cannot affect the meaning of the constitutional words in Article II, which took effect in 1789. In fact, the enactment of the 1790 statute suggests that the common-law meaning was explicitly being changed.
Under a well-accepted canon of construction, constitutional or statutory words and phrases with an accepted common-law meaning are presumed to bear their common-law meaning—unless explicitly redefined.
Unlike some commenters, Garner says that the acts of Parliament are relevant:
A further question arises: to what extent was a 1708 or 1731 statute incorporated into American law? The answer is that they are entirely applicable. According to the U.S. Supreme Court in 1831: “These statutes being passed before the emigration of our ancestors, being applicable to our situation, and in amendment of the law, constitute a part of our common law.” [‘Doe ex. dem. Patterson v. Winn, 30 U.S. 233, 241–42 (1831).] In his 1828 Commentaries on American Law, James Kent had used virtually the same words.2
Were these statutes “applicable to our situation”? Apparently. After all, the 1790 federal statute had likewise restricted blood rights to those born of father-citizens, just as the British statute had restricted them to father-subjects. But the federal statute had a further restriction: only father-citizens who had been resident in the United States could confer blood rights.
In the end, Garner concludes that the Supreme Court would find Cruz eligible.
Interestingly, Gabriel Chin, who wrote against the eligibility of John McCain says Cruz is probably eligible in a 2013 article published by CNN. Chin believes that the word “natural” in “natural born subject” refers to natural law, rather than from the Latin root meaning “from birth.”
Katyal and Clement
Writing in the Harvard Law review conclude Cruz is definitely eligible.
Legislative attorney Jack Maskell of the Congressional Research Service renewed his opinion that Cruz is likely eligible in his recently-updated CRS report.
Writing for the Boston Globe, noted defender of McCain’s eligibility Laurence H. Tribe comes out in support of eligibility for his former student, Ted Cruz. Tribe says that for an originalist judge, Cruz is toast, but not under our evolving constitution. Tribe wrote:
… the kind of judge I admire and Cruz abhors is a “living constitutionalist,” one who believes that the Constitution’s meaning evolves with the perceived needs of the time and longstanding practice. To that kind of judge, Cruz would be eligible to serve because it no longer makes sense to be bound by the narrow historical definition that would disqualify him.
Akhil Reed Amar, author and professor of constitutional law at Yale University, says in a CNN opinion piece that it is the Congress, not the judiciary, who is the final arbiter of presidential qualifications under the 12 Amendment.
Ordinary courts should butt out … the issue is a “nonjusdiciable political question.”
He says the “right answer” is found by asking whether Cruz is “born a citizen” because that’s what “natural born citizen” means and uses my two favorite words to clarify:
The 14th Amendment says that birth on American soil is sufficient to be a birth citizen. But it is not necessary.
Amar’s piece is short on legal reasoning, but he does touch on the import of the word “natural”
That word confirms the analysis. First, the word itself derives from Latin and French roots that are about birth. The word is arguably redundant (in the way that much of language is). In effect, the Constitution says that a president must be a “birth-born citizen.” But the word “natural” does add a key clarification: Congress is empowered by statute to define birthright citizenship under its Article I, section 8 power to pass a “Rule of Naturalization.”
Perl-Rosenthal and Erman
These two, professors of history and law, conclude that perhaps the Framers were not trying to write precisely about citizenship in the Constitution and that they may have had differing ideas of what “natural born citizen” meant, just as we do today, and particularly about whether the English provisions for subjects born abroad were so deeply enshrined in English law as to be considered part of the common law. Their article is “Ted Cruz: Is He or Isn’t He Eligible to be President?” at History News Network. They conclude that Cruz is eligible.
Michael Ramsey of the University of San Diego Law School joins the pro-eligibility side in this academic paper, “The original meaning of ‘natural born citizen.”
In adopting the phrase “natural born” from English law, the American framers likely understood that they were using a phrase without a fixed definition and subject to legislative alteration through the naturalization power. That conclusion in turn provides sound support for the modern view that Congress can create categories of “natural born” citizens by statute.