[Hello there, this is G. Sallust, back from the twilight zone. I’ll not stay long, just long enough to introduce this small piece on Ted Cruz; but I’ll be back again in the not too distant future with lots more opinions, well-reasoned arguments, rants and so forth. So be happy, or be warned; whichever you prefer.

What more can I say about Ted Cruz? Haven’t I done enough? Well, let’s start with a simple question. How are he and Barrack Obama the same? Let’s see, Obama is President, and Ted Cruz wants to replace him. In this country we do that kind of thing with an election and, of course, one is scheduled for this November. Obama can’t run again – the 22nd Amendment[1] to our Constitution says so – so Cruz only has to compete with the wannabe Presidents in his own party, and eventually with the candidate the Democrats put forth, to gain his objective. Oh, and he has to be eligible to be President.

Eligible? What’s that about?  Well, Article II of the Constitution doesn’t set out many requirements, but there are a few. It says:

No Person except a natural born Citizen … shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.[2]

You remember the big argument about President Obama, and his citizenship, don’t you? People – so-called “birthers” – argued that he wasn’t really the President because he had been born in Kenya, not the U.S.; he wasn’t a “natural born” citizen within the meaning of Article II. Obama’s answer was that in fact he was born in Hawaii, and Hawaii was at that time and is now part of the U.S. He then produced two Hawaiian birth certificates, one in the short form and the other in the long form, to prove his case. That didn’t satisfy everybody, but most folks decided to let the matter go.[3]

Now we have Ted Cruz and his situation. You see, he doesn’t have a U.S. birth certificate. Reports are that he was born in Canada, not here; and he pretty much admits that. Indeed, because he was born there, and not here, he qualified for Canadian citizenship, which he held until he renounced it a few years ago.[4]

So, people on the Right argue that our Constitution bars the foreign-born from becoming President.[5] They certainly said that when they thought Mr. Obama was born in Kenya.[6] But of course today we don’t hear much about birthplace eligibility from Ted Cruz, because the issue cuts against him; which just goes to show, I guess, that hypocrisy is no stranger to politicians. Make any argument to impress your audience, even if you argued the opposite yesterday.

So here’s my question: Putting politics aside for the moment, who really qualifies as a “natural born citizen” these days? I don’t know that answer, but I’m betting Larry, our legal consultant, has some ideas, and well-founded ones to boot.]

Thanks for your faith, I guess. This isn’t my area, but I have looked at some of the literature, and apparently there are no Supreme Court cases directly on point. Let’s start by framing the issue. There seems to be a lot of confusion about who is a “citizen,” and which ones are “natural born.” The 14th Amendment says that people born in this country are citizens.[7] People who don’t qualify by birth need to be “naturalized” to become citizens. Article I, Section 8 of the Constitution says that Congress has the power to “establish [a] uniform Rule of Naturalization [of citizens].”[8]

Congress has done so, with various pieces of legislation, and, if you want to see a summary of the results, as they relate to people born to Americans overseas, you can find it in regulations published by the DHS.[9] Apparently many such people are American citizens – they are naturalized by laws passed by Congress – but that doesn’t answer the further question, i.e., are they also “natural born” within the meaning of Article II? Can any of them be President?

The question seems bizarre on its face, doesn’t it? Surely the Founders weren’t thinking of test tube babies, clones or other forms of artificial births when they wrote our Constitution. Two hundred years ago biological technology hadn’t advanced far enough to do that kind of thing. All births were “natural” in the ordinary sense of that phrase, i.e. were normal or to be expected, not a creature of technology.[10] But if we look further we’ll find that the lawyers back then had a different understanding of what it meant to be “natural born,” at least where citizenship was concerned. To those lawyers a “natural born” citizen was one born in the home country, not outside of it.

This is obvious from the legal writing of that time, for example in William Blackstone’s Commentaries on the Laws of England.[11] [The edition I looked at is available as a download from the Federalist Papers Project.[12]] “The first and most obvious division of the people,” said Blackstone, “is into aliens and natural-born subjects.”

Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the allegiance, or, as it is generally called, the allegiance of the king; and aliens, such as are born out of it.[13]

A lot flowed from this. The natural-born subject was duty-bound to be loyal to the king [i.e., the Government] and in return the king protected the subject. Also, the duties were hard to escape. “For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be divested without the concurrent act of that prince to whom it was first due.”[14] On the other hand the natural-born subject also had rights, a “great variety” of them, and these could be forfeited only by “misbehavior.”[15]

[So that’s the basic distinction. People born in a country are natural-born subjects of it, and have inalienable rights and duties that come with that status. People born outside of the country, who come to visit or perhaps take up residence, have only the rights and duties established by local law. Yes?]

Yes, more or less. And to the extent that visitors are loyal to the country where they reside, the situation is temporary only.[16] It’s worth noting that Blackstone also discusses some intermediate states between natural-born subjects and aliens. An alien who got special permission from the king could take up residence as a denizen.[17] Parliament could pass laws to “naturalize” others.[18] But while these acts could increase the rights of resident aliens, neither created a “natural born” subject.

[I guess. Anyway, your conclusion is that when the Founders drafted our Constitution, and wrote Article II to say that “[n]o Person except a natural born Citizen” could be President, they meant that literally. One has to be born in this country in order to be President. People born in Iran, Russia, Cuba, China or even Canada need not apply.]

Yes. As I’ve tried to demonstrate, the words “natural born” had a definite and widely accepted meaning back when the Constitution was written. I think the Founders knew what they were saying when they said it.[19]

[Fine. So what if a Republican Congress decides to act? After all, Congress is empowered to legislate on citizen naturalizations. What if it passes a law to the effect that, henceforth, all naturalized citizens shall be deemed to be “natural born,” and the courts shall not find otherwise. Would that solve Ted Cruz’s problem?]

You and your speculations! My personal opinion is that kind of action would cause a crisis of the first order. No legislator would be that stupid, I hope. In effect the Congress would be trying to change the Constitution by simple legislation. Congress doesn’t have that power. It takes a two-thirds vote of the House and the Senate to even propose amendments to the Constitution, and three quarters of the States have to accept them before they become effective.[20] The process is hard to do because the Founders wanted it that way.

[Let’s hope.]

[1] For an authoritative version the U.S. Constitution, and its Amendments, check out the National Archives. For the Constitution, go to: http://www.archives.gov/exhibits/charters/constitution.html . That’s the version we’ll be citing here. If you want to look at the 22nd  Amendment, go back to the National Archives, this time to http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html

[2] See U.S. Constitution, Article II, Section I.

[3] See the Wikipedia entry on Barack Obama citizenship conspiracy theories, available at https://en.wikipedia.org/wiki/Barack_Obama_citizenship_conspiracy_theories

[4] See The New York Times, Hulse, It May Be Time to Resolve the Meaning of ‘Natural Born’ (Jan. 18, 2016), available at http://www.nytimes.com/2016/01/19/us/politics/it-may-be-time-to-resolve-the-meaning-of-natural-born.html?_r=0

[5] See New Republic, Scheiber, Meet the Most Important Ted Cruz Birther: Ted Cruz (May 6, 2013), available at https://newrepublic.com/article/113135/ted-cruz-2016-hes-his-own-worst-birther

[6] Just for grins, take a look at Politifact Texas, Selby, Facebook meme says Ted Cruz a flip-flopper on president needing to be U.S.-born (March 27, 2015), available at http://www.politifact.com/texas/statements/2015/mar/27/facebook-posts/facebook-meme-says-ted-cruz-flip-flopper-president/ This isn’t the kind of thing we normally source, because we haven’t corroborated it, but it is a fun read.

[7] If you want to look at the 14th Amendment, go back to the National Archives, this time to http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html Section 1 of the 14th Amendment says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

[8] See note 1.

[9] See Department of Homeland Security, U.S. Citizenship and Immigration Services, Citizenship Through Parents, available at http://www.uscis.gov/us-citizenship/citizenship-through-parents

[10] See Compact Oxford English Dictionary (3rd Edition, 2005) at p. 676, natural:1. existing in or obtained from nature … 2. in accordance with nature; normal or to be expected ….”

[11] For a general history of Blackstone’s Commentaries, see the Wikipedia entry at https://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_England

[12] See The Federalist Papers Project, Blackstone, Commentaries on the Laws of England – Volume One, available at http://www.thefederalistpapers.org/political-philosophers/william-blackstone/commentaries-on-the-laws-of-england-volume-one . This is the 3rd Edition, printed in Oxford in 1768. Hereafter it will be cited as Blackstone, Vol. 1 at __. There are other sources as well, most notably at the Yale Law School, Lillian Goldman Law Library, at http://avalon.law.yale.edu/18th_century/blackstone_bk1ch10.asp Yale has a slightly earlier edition.

[13] See Blackstone Vol. 1 at Ch. 10, The Rights of Persons, p. 366. Please note that I am translating these quotes from the old English spelling. If you think I’ve made mistakes, you’re probably correct.

[14] See Blackstone Vol. 1 at Ch. 10, The Rights of Persons, p. 370.

[15] See Blackstone Vol. 1 at Ch. 10, The Rights of Persons, p. 370 – 371. Also, the children of aliens, if they were born in England, were considered to be “natural born” subjects. Id. at 374: “The children of aliens, born here in England, are, generally, natural-born subjects, and entitled to all the privileges of such …”

[16] See Blackstone Vol. 1 at Ch. 10, The Rights of Persons, p. 370-371: “Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king’s dominion and protection : and it ceases, the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only.”

[17] See Blackstone Vol. 1 at Ch. 10, The Rights of Persons, p. 373: “A denizen is in a kind of middle state between an alien, and natural born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not ; but cannot take by inheritance … “

[18] See Blackstone Vol. 1 at Ch. 10, The Rights of Persons, p. 373: “Naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king’s ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament. No bill for naturalization can be received in either house of parliament, without such disabling clause in it …”

[19] But see, Harvard Law Review Forum, Katyal & Clement, On the Meaning of “Natural Born Citizen” (Mar. 11, 2015), available at http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/

[20] See U.S. Constitution, Article V: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”