Ted Cruz, Originalism, and the “Natural Born Citizen” Requirement

In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born in 1936 in the Panama Canal Zone to parents who were American citizens, was a “natural born Citizen” ratified my point, as virtually all commentators purported to undertake an originalist inquiry.

I hadn’t seen any reason to comment on the left-wing “birther” attacks on Senator Ted Cruz’s eligibility to be president. Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.

As this Congressional Research Service report sums it up (p. 25; see also pp. 16-21), the “overwhelming evidence of historical intent, general understandings [in 18th-century America], and common law principles underlying American jurisprudence thus indicate[s] that the most reasonable interpretation of ‘natural born’ citizens would include those who are considered U.S. citizens ‘at birth’ or ‘by birth,’ … under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent.” In other words, there is strong originalist material to support the semantic signal that “natural born Citizen” identifies someone who is a citizen by virtue of the circumstances of his birth—as distinguished from someone who is naturalized later in life as a citizen. (In McCain’s case, the dispute turned on whether he was indeed an American citizen by virtue of his birth—or was instead naturalized a citizen under a law enacted when he was eleven months old. For more, see law professor Gabriel Chin’s lengthy article making the case against McCain.)

To my surprise, the New Republic’s Noam Scheiber tries to argue that Cruz’s embrace of constitutional originalism somehow means that Cruz can’t determine that he is a “natural born Citizen.” But the only evidence that Scheiber offers for this position is the assertion (which Scheiber mischaracterizes as a concession) by a non-originalist law professor in an MSNBC interview that the proposition that a person is a “natural born Citizen” if he is a citizen by virtue of his birth “isn’t really clear cut if you limit yourself to the actual wording of the Constitution” (that’s Scheiber’s paraphrase) but instead depends on “how our understandings have evolved over time.” Scheiber both overlooks the powerful originalist evidence in support of Cruz’s status as a “natural born Citizen” and misunderstands how originalist methodology operates. (In public-meaning originalism, you don’t “limit yourself to the actual wording of the Constitution,” and you don’t find yourself lost simply because the Constitution “never defines what ‘natural born’ means.” You instead look to the public meaning of the term at the time it was adopted.)

My point here isn’t to contend that the originalist evidence points entirely in one direction. As law professor Michael Ramsey observes in a post that I’ve run across while finalizing this post (a post that also takes issue with Scheiber), there are originalist scholars who don’t “find the argument entirely conclusive.” But Scheiber’s piece is a cheap whack at Cruz as well as a cheap whack at originalism.

Not unless his parents or himself declared as much.

“there is more NBC misinformation than there was on who was getting any in high school”

All this conjecture shows why the Founders knew better than let a bunch of overly opinionated old farts decide law, unless of course we’re all confirmed as Justices of the Supreme Court.

Cruz sure seems to be a God-send at the right place and the right time. Whether or not he’s true NBC will not be decided until someone “with standing” raises an objection and it makes it through the SCOTUS. If a blaring case such as nobama never had a “with standing” objection, then there probably never will be.

Absurd if you don't know history.

You insinuate I have a lesser knowledge of history than do you, and then post this:

" The first Congress and Pres. Washington made children born over seas to citizen parents "natural born citizens" and used that term in the law. "

Yes, they did, and what did they stipulate in that Citizenship Act of 1790? How about we look at it and see how well it fit's your theory?

United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States that may be born beyond 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: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

"Shall be considered as" does not mean the same thing as "Is". Secondly, the status of "shall be considered as" is dependent upon the father's citizenship and residency in the U.S.

But the point is moot. In 1795, Congress struck out the words "Natural Born Citizen" and has never put them back into legislation, to my knowledge. (Not even the 14th amendment.)

That's really all we need to know:

Obviously you needed to know more than you thought.

Congress can define the term by law just as it defines who is and who is not a citizen by birth.

Congress cannot make "natural citizens." They can "naturalize" anyone they want, but if they can create them, they can destroy them too. A "natural citizen" cannot be destroyed by the whim of congress. If congress can pass a law to make you a citizen, they can take it away too.

As far as inherited citizenship, they're one-and-the-same.

If they are the same, then how did Aldo Mario Bellei have his citizenship stripped away for failing to comply with the Congressional law which granted him his citizenship at birth?

I didn't have to comply with this law. There were no "conditions" on my citizenship. If they are the same, why did Bellei have to comply with this artificial law made by congress, but I didn't have to? Inquiring minds want to know!

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