Andrew C. McCarthy: Cruz, Natural Born Citizen

Senator Ted Cruz is wise to laugh off Donald Trump's intimation that his constitutional qualifications to serve as president may be debatable.

The suggestion is sufficiently frivolous that even Trump, who is apt to utter most anything that pops into his head, stops short of claiming that Cruz is not a "natural born citizen," the Constitution's requirement. Trump is merely saying that because Cruz was born in Canada (of an American citizen mother and a Cuban father who had been a long-time legal resident of the United States), some political opponents might file lawsuits that could spur years of litigation over Cruz's eligibility.

The answer to that "problem" is: So what? Top government officials get sued all the time. It comes with the territory and has no impact on the performance of their duties. Indeed, dozens of lawsuits have been brought seeking to challenge President Obama's eligibility. They have been litigated for years and have neither distracted him nor created public doubt about his legitimacy. In fact, most of them are peremptorily dismissed.

A "natural born citizen" is a person who has citizenship status at birth rather than as a result of a legal naturalization process after birth. As I explained in Faithless Execution (in connection with the term "high crimes and misdemeanors"), the meaning of many terms of art used in the Constitution was informed by British law, with which the framers were intimately familiar. "Natural born citizen" is no exception.

In a 2015 Harvard Law Review article, "On the Meaning of 'Natural Born Citizen," Neal Katyal and Paul Clement (former Solicitors-General in, respectively, the Obama and George W. Bush admininistrations), explain that British law explicitly used the term "natural born" to describe children born outside the British empire to parents who were subjects of the Crown. Such children were deemed British by birth, "Subjects ... to all Intents, Constructions and Purposes whatsoever."

The Constitution's invocation of "natural born citizen" incorporates this principle of citizenship derived from parentage. That this is the original meaning is obvious from the Naturalization Act of 1790. It was enacted by the first Congress, which included several of the framers, and signed into law by President George Washington, who had presided over the constitutional convention. The Act provided that children born outside the United States to American citizens were "natural born" U.S. citizens at birth, "Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States."

As we shall see presently, Congress later changed the law, making it easier for one American-citizen parent to pass birthright citizenship to his or her child, regardless of whether the non-American parent ever resided in the United States. But even if the more demanding 1790 law had remained in effect, Cruz would still be a natural born citizen. His mother, Eleanor Elizabeth Darragh Wilson, is an American citizen born in Delaware; his native-Cuban father, Rafael Bienvenido Cruz, was a legal resident of the U.S. for many years before Ted was born. (Rafael came to the U.S. on a student visa in 1957, attended the University of Texas, and received political asylum and obtained a green card once the visa expired. He ultimately became a naturalized American citizen in 2005.)

As Katyal and Clement observe, changes in the law after 1790 clarified that children born of a single American-citizen parent outside the United States are natural born American citizens "subject to certain residency requirements." Those residency requirements have changed over time.

Under the law in effect when Cruz was born in 1970 (i.e., statutes applying to people born between 1952 and 1986), the requirement was that, at the time of birth, the American citizen parent had to have resided in the U.S. for ten years, including five years after the age of fourteen. Cruz's mother, Eleanor, easily met that requirement: she was in her mid-thirties when Ted was born and had spent most of her life in the U.S., including graduating from Rice University with a math degree that led to employment in Houston as a computer programmer at Shell Oil.

As Katyal and Clement point out, there is nothing new in this principle that presidential eligibility is derived from parental citizenship. John McCain, the GOP's 2008 candidate, was born in the Panama Canal Zone at a time when there were questions about its sovereign status. Barry Goldwater, the Republican nominee in 1964, was born in Arizona before it became a state, and George Romney, who unsuccessfully sought the same party's nomination in 1968, was born in Mexico. In each instance, the candidate was a natural born citizen by virtue of parentage, so his eligibility was not open to credible dispute.

So The Donald needn't fear. Like President Obama, President Cruz would spend more time working on which turkeys to pardon on Thanksgiving than on frivolous legal challenges to his eligibility. Ted Cruz is a natural born U.S. citizen in accordance with (a) the original understanding of that term, (b) the first Congress's more demanding standard that took both parents into account, and (c) the more lax statutory standard that actually applied when he was born, under which birthright citizenship is derived from a single American-citizen parent.

We disagree on that, unless by "had to be taken" you mean that she actually took an overt action.

What did I say in my most recent response to you? "As I explained, an overt action had to be taken by the mother to obtain US citizenship for her infant son. It was my assumption that she did register the birth with the consulate. Obviously, Ted could not do that himself. The use of the word "had" is meant to describe what actually happened."

The way I read those statements together, citizenship under 1401(g) attaches at birth, and is not conditioned on approval. You have said that citizenship attaches after birth, on approval, and doesn't attach at all if the conditions are met and approval isn't sought. Well, that's the natural meaning of the words you typed, maybe you mean something different, and I'm just confused again.

There are two ways to become a citizen, at birth (jus solis and jus sanguinis jus solis is automatic. You are born on US soil or a territory of the US and you are a citizen no matter who your parents are or whether they are here legally or not. It is called birthright citizenship for a reason. Jus sanguinis is derivative citizenship based on a number of conditions. The burden of proof falls on the applicant to show that they are eligible to receive it under the laws current at the time.

There is no such thing as retroactive citizenship. Again, the at birth proviso is to distinguish the two ways you can become a citizen, i.e., at birth or naturalization. The procedures, required documents, etc for naturalization are different than those required for those acquiring citizenship via jus solis or jus sanguinis .

That was uncalled for. I can only go by the words you type, and as i pointed out with the "had to pay by check" example, maybe the words you type are taken, by others, in a way different from what you intend.

I don't appreciate being called a "crank and crackpot." Like Trump, I don't respond unless attacked. When you get personal, it weakens your position. You can disagree without being disagreeable.

-- What did I say in my most recent response to you? "As I explained, an overt action had to be taken by the mother to obtain US citizenship for her infant son. --

To be honest with you, I have no idea what you mean in that statement, that you find to be perfectly clear.

If I view it as meaning her action is mandatory, you say that is not what you mean. But the normal meaning and consequence of "an overt action had to be taken by the mother to obtain US citizenship for her infant son" is that if she did not take an overt action, then her infant son is not a citizen.

-- The use of the word "had" is meant to describe what actually happened." --

That just confuses me even more. Does that result in your statement being "As I explained, an overt action actually happened by the mother to obtain US citizenship for her infant son."? Please disregard that is awkward phrasing, I'm not criticizing the phrasing, just trying to ferret out what you mean to say.

-- I don't appreciate being called a "crank and crackpot." --

Of course, I understand. But that's the way i feel, and maybe it's my own fault because I take what you write in the normal way those phases parse. Hell, I even looked up the meaning of "have to" as a sanity check on myself. Define "Have to" at Dictionary.com. That came back with a meaning of "be obliged to" or "must," which coincides with the meaning I applied. But after your example of paying for the couch with a check, and otherwise finding me to be pedantic, well, I'm confused and frustrated with our exchange.

I don't want to be a pest to anybody, I'm not trying to be difficult, just trying to honestly state exactly what our differences are, and see if we come away in agreement or disagreement. At this point, I think that is impossible, and of course, I don't think that's my fault. What started as what I thought was a simple (and FWIW, ssent in friendship) correction of an academic legal point has turned into pages of talking past each other.

I know I asked a few questions above. You can answer them if you want, but please don't feel that I expect or deserve a reply. You are probably frustrated and tired of this debate too, I doubt we'll resolve it (meaning I doubt we'll figure out what our differences are, if any), I don't care if it's resolved or not, and there is no consequence if we don't resolve it.

I have nothing further.

Your logic would have one law on naturalization (Naturalization Act of 1790) legal and subsequent ones not.

The Naturalization Act of 1790 was superseded by the Naturalization Act of 1798 - did intent change here? - which was repealed by the Naturalization Act of 1802 - did intent change here?

The constitution does not define natural-born, it does empower Congress to “establish an uniform Rule of Naturalization.”

It has always been that there are two ways to citizenship, natural-born or naturalized.

Your argument is also covered in the article.

thanks for your reply.

The natural born concept was frozen into the Constitution. Congress has the power to determine citizenship, but that doesn’t change Constitutional mandates.

I have heard the argument that the Constitution does not define the concept of natural born citizenship at least a thousand times. There are numerous words in the Constitution that are not defined. Does that mean we are permitted to run riot with all those words.

The Naturalization Act of 1790 was written by the same people who wrote the Constitution, and it defines what natural born means — the offspring of citizens. I, along with millions, was taught in American history that natural born referred to someone born of parents who both were citizens. The Founders were concerned with loyalty; for example, the king of England at that time was a German, raised in Germany. Loyalty was not a prerequisite for the British throne; bloodlines were. In England, when the king died, people usually celebrated, they hated him so much.

According to the Naturalization Act of 1790, citizenship descended through the father only. Cruz’s father was not a citizen of the United States until much, much, later after Cruz was born.

“It has always been that there are two ways to citizenship, natural-born or naturalized.

I don’t know. It seems like now it is naturalized, citizen, and natural born citizen. But this whole thing is not for us to decide.

Likely my last point in our discussion. I'll leave you the last word.

It seems like now it is naturalized, citizen, and natural born citizen.

Born a citizen is natural born a citizen. As opposed to naturalized as a citizen. It always has been. I don't see a valid argument that it ever was different. So, IMHO, Cruz is either not a citizen or is natural born.

But this whole thing is not for us to decide.

Yeppers, we can argue our positions, but... In any case I don't buy Trump's 'it's gonna be a distraction on Cruz if he's elected. It didn't distract Obama. :)

Thanks for a vigorous argument.

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