Natural Born Citizen: Ted Cruz's Eligibility For President Is An Open Question

I am a Ted Cruz fan. If my endorsement means anything, I back him as a presidential candidate and likely intend to vote for him. Yet I will not lie or be a hack. The likes of Mark Levin, Hugh Hewitt, others on talk radio and elsewhere, claiming it is an open and shut case that Ted is eligible to be President are being misleading and being total shills for Cruz. The Constitution requires a "natural born citizen" be President (Article II, Section1, Clause 5). This is distinct from a "naturalized" citizen, or a citizen in accord with congressional statute. The founders were intimately aware of English common law and Sir William Blackstone when they ratified the Constitution. Blackstone wrote that "natural-born subjects are such as are born within the dominions of the crown of England" and that, in contrast, "naturalization cannot be performed but by act of parliament." Does Ted Cruz meet the requirements for the highest office? Let's not pretend it's not an issue worthy of being litigated. I for one would be mighty interested to see how Clarence Thomas would rule on the question. In fact, Ted Cruz was born abroad to an American mother, and prior to May 24, 1934, U.S. citizen mothers were not permitted to transmit U.S. citizenship to their children born abroad (prior to 1934 children born outside the limits and jurisdiction of the United States acquired citizenship at birth if they had American fathers, unless the father had never "resided" in the United States prior to the child's birth). Suffice it to say that Donald Trump is not at all wrong in saying it is an open question, especially if one believes the only proper method of Constitutional interpretation is to look toward original meaning.

The question becomes what "natural born citizen" meant at the time of ratification. Was the original intent that the Constitutional clause would be subject to Congressional statute? Some have made this argument. Perhaps, but if so, it would be quite an anomalous provision in the Constitution (after all, you don't need a Constitutional provision to set a requirement subject to Congress, the whole point generally is that Congress is supposed to be subject to the Constitution). What was the original meaning of the phrase? That alone should be dispositive. While I am not completely certain, let's not be hacks and pretend the question suddenly went away because it's our guy running for office.

I can't see why Blackstone's views would not affect originalist exegesis. Why would that not be the case? That seems mighty odd. Granted, reading the natural born citizen clause to mean "anyone Congress says is a citizen at birth" is a possibility. Maybe. But are you truly convinced of that? A recent article in Washington Post arguing the opposite said that James Madison, known as the “father of the Constitution,” stated, “It is an established maxim that birth is a criterion of allegiance. . . . [And] place is the most certain criterion; it is what applies in the United States.”  In originalist circles there is clearly an open question. Why the need to pretend the answer is obvious? It's not. The whole Obama birther movement was based on him being born in Kenya, and nobody responded to it saying it made no difference because he had an American mother. Instead they proved he was born in Hawaii. Prior to these "birther" movements it seemed to be a rather broad consensus, taught in basic civics or government classes, that one had to be born in the United States to be President. Why were we all being taught that? Am I supposed to wipe my memory drive clean and pretend I never heard that before? That it wasn't the "consensus" before the new consensus. 

The main substance of John Eastman's argument in National Review argues that the 1790 naturalization act says what Congress considered "natural born citizen" within that statute. It is certainly interesting that they used the same phrase as the Constitution, and maybe that alone should be dispositive as to fact that they meant to leave it open to Congress to decide who was a citizen at birth, and only those people were eligible for the Presidency. Or maybe not, because typically we don't look to acts of Congress to define a Constitutional provision, let alone one replaced in 1795. See, the argument then goes not that he is a "natural born citizen" based on the 1790 statute, since that's long gone, and replaced within a few years, but rather the 1934 one. And that statute defining him as a citizen at birth makes him a "natural born citizen." Again, maybe. That seems to run against Blackstone's distinction, but it seems to also run against the basics of "originalist" jurisprudence. Then again, some are arguing that's what they originally had in mind. Maybe. Even if that is right, and it may very well be, don't tell me this is obvious, open and shut, legal consensus, against "birtherism." That's baloney, and I say that as a person who is big fan of both Cruz and John Eastman (who on this issue, in line with his politics, suddenly agrees with the other "smart guy" on Hewitt's show, the liberal "living Constitutionalist" Erwin Chemerinsky). 

Also, the idea that this would affect those born to military members overseas is a red herring.  A leading authority in England prior to Blackstone was Edward Coke, who wrote about this subject in Calvin's Case. According to Coke: "[I]f any of the King's ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King's dominions." One could easily argue that those posted overseas in service to the government, such as members of the military, would be treated no different than an ambassador in this regard. Tweet