That makes a good point. I’m not a legal scholar of the Constitution. However, it is my observation that there was developed early in our nation’s history a definite idea of what a Natural Born Citizen is:
The Naturalization Act of 1790 provided that “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 . . . .” This expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the United States at some point.
Was Senator Cruz’s father a resident of the United States? Ted Cruz was born in Calgary, Canada, when his parents were running a seismic-data processing firm for oil drillers. It was there Ted’s father, Rafael, became a Canadian citizen. Previously, Rafael obtained political asylum in the United States after his four-year student visa expired. Rafael renounced his Canadian citizenship and, in 2005, became a naturalized U.S. citizen. So, Rafael had been a resident of the United States. However, will his Canadian citizenship be a larger factor?
Rafael came to the US in 1957.
Indeed. But the skill of applying statutory construction, and viewing this law as it was repealed and replaced, those are generally missing.
For example, the senate resolution finding McCain to be an NBC says the 1790 act defined NBC. But in ordinary statutory construction, "shall be considered as" is not a term that defines, it is a term that creates a legal fiction. If the Congress makes fundamental mistakes like that (and Congress isn't the only intellectually corrupt controlling entity, SCOTUS say the constitution contains a proviso that define marriage to include homosexual couples), it's not surprise that the public is misled.
I would guess that the fraction of people who are open-minded about this is 10%. All others have their mind made up, but few have their mind made up after careful, deliberate and correct study.
At any rate, to Cruz, the residence of his father is irrelevant. The clause in the 1790 act aims to cut off a US citizen father who was never in the US from passing his citizenship to the next generation. Cruz's statutory US citizenship (granted by 1401(g), at birth) is determined with reference to his mother's citizenship at the time Cruz was born, and his mother's prior residence in the US. All the conditions of 1401(g) are met. She could have gone to Canada, married a Canadian who never set foot in the US, and the child would still fit within the conditions set down in 1401(g). Under 1401(g), the residence conditions attach to the parent who is a citizen, not to the parent who is an alien.
The Naturalization Act of 1790 has since been amended many times by Congress. Transport yourself to the 21st Century. This is the current law:
"A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be the genetic or the gestational parent and the legal parent of the child under local law at the time and place of the child's birth to transmit U.S. citizenship.