The point was loyalty -- not a document.
First, English common law was used by the States, not the federal government. That's why one of the sections contained in the first legal treatise written after Constitutional Ratification was entitled:
Of the Unwritten, or Common Law of England; And Its Introduction into, and Authority Within the United American States
It's by George Tucker, and can be found here
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Secondly, Tucker states:
But some late incidents having given rise to an opinion, that the common law of England, is not only the law of the American States, respectively, according to the mode in which they may, severally have adopted it, but that it is likewise the law of the federal government, a much wider field for investigation is thereby opened; of the importance of which, the general assembly of Virginia, at their session in the winter of 1799, have thus expressed their sentiments, in behalf of themselves, and their constituents.
"It is distressing to reflect, that it ever should have been made a question, whether the constitution of the United States on the whole face, of which, is seen so much labour to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; a law that would sap the foundation of the constitution, as a system of limited, and specified powers."
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Third, it was NOT 'English common law at the time'. What Blackstone actually said was natural borns were born within the ALLEGIENCE of the King.
OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES
The first and most obvious division of the people is into aliens and natural-born subjects.1 Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance, of the king; and aliens, such as are born out of it.
Chapter X , William Blackstone, Commentaries on the Laws of England
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His father had renounced allegiance to Cuba and was seeking American citizenship.
I have seen no evidence of Cruz's fathers' renunciation of Cuban citizenship. If you have such evidence, please provide it.
While he could have done so, it would have left him as a man without a country. Natural-born Citizenship can't be 'assumed' or bestowed onto a foreign national by the federal authority, as they have only the authority to make a uniform Rule for Naturalization. Thus all the federal authority CAN determine are NATURALIZED citizens.
Citizenship occurs at the State level. The Founders created it this way, followed these rules of legal procedure themselves, and they knew government didn't have the legal ability to CREATE natural-born citizens. They only gave themselves the privileges, immunities OF natural-born citizens.
November 22, 1788
……andPhillip Theobald & John de Polerisky, upon taking the oath of allegiance to this Commonwealth before two Justices of the Peace, & paying to the Secretary the fee in such case required, shall be deemed adjuded and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, priviledges and immunities of natural born Citizens.
Acts and Resolves of Acts and Resolves Passed by the General Court of Massachusetts
Page 39
Anyone not following this procedure were deemed 'aliens'.
Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens. The clerk of the court shall enter such oath of record, and give the person taking the same a certificate thereof, for which he shall receive the fee of one dollar.
Thomas Jefferson , A Bill Declaring Who Shall Be Deemed Citizens of This Commonwealth, May 1779
Already existing children would became naturalized at the same time through a process known as derivation.
Any children born AFTER the legal procedure of naturalization would then be natural-born citizens.
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The point was loyalty -- not a document.
What an emotive statement. To question Cruz's eligibility is to question his loyalty?
What a liberalized pant-load.
We explicitly rejected English Common law as governing citizenship by breaking it when we expatriated ourselves. English law holds that allegiance is perpetual. I'm thinking we should not be invoking the principles of a law we so blatantly rebuked.
That being said, if his father had renounced allegiance to Cuba, and was actually SEEKING American citizenship, i'd give him a pass. This comports with my understanding of how the Founders dealt with such issues. Residency, and intent to become a citizen was an oft cited criteria.
But it is my understanding, that this is not the case. His father didn't become a Citizen until 2005. This is well past any reasonable understanding of the "intending to be a citizen" claim. It ought to have been in the 1960s to have been a credible argument.
But i'll vote for him anyway. The rules simply don't matter any more.