Yes, Ted Cruz is a â€œnatural-bornâ€ citizen -- even in an originalist reading of the clause

IS TED CRUZ A “NATURAL BORN” U.S. CITIZEN?: According to Widener law school’s Mary Brigid McManamon, who has an oped in the Washington Post today, the answer is “no.” Her reasoning is a bit shaky:

On this subject, the common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are "such as are born within the dominions of the crown of England," while aliens are "such as are born out of it." The key to this division is the assumption of allegiance to one's country of birth. The Americans who drafted the Constitution adopted this principle for the United States. James Madison, known as the "father of the Constitution," stated, "It is an established maxim that birth is a criterion of allegiance. [And] place is the most certain criterion; it is what applies in the United States." . . .
Article I of the Constitution grants Congress the power to naturalize an alien. . . . But Article II of the Constitution expressly adopts the legal status of the natural-born citizen and requires that a president possess that status. . . . Congress simply does not have the power to convert someone born outside the United States into a natural-born citizen.

McManamon’s quotation from Blackstone’s Commentaries purposefully omits key language. Specifically, Blackstone stated:

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

The key to this passage is the concept of “allegiance”–whether the individual has been born with allegiance to the king, or not. Individuals born with allegiance to the sovereign are ”natural-born” subjects; those lacking such allegiance are not. It is not, as McManamon implies from her selective portion, a question merely of being born within the geographic confines of the country. McManamon’s citation to the James Madison passage confirms this, as Madison acknowledges that “place is the most certain criterion,” but he is not suggesting that it is the only criterion, as he states unequivocally that the “established maxim” is that the ultimate criterion is “allegiance,” of which the place of birth is but one (albeit “certain”) criterion.

Article I, section eight gives Congress the authority to “establish a uniform rule of Naturalization,” and thus identify, by statute, those who must to go through a naturalization process to obtain U.S. citizenship. Those citizens who do not need to go through the naturalization process are “natural born” citizens. As former Solicitors General Neil Katyal and Paul Clement have recently noted in the Harvard Law Review Forum,

All the sources routinely used to interpret the Constitution confirm that the phrase "natural born Citizen" has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States. . . .
The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law and enactments of the First Congress. Both confirm that the original meaning of the phrase "natural born Citizen" includes persons born abroad who are citizens from birth based on the citizenship of a parent.

McManamon asserts that Katyal and Clement behave in an “unforgivable” fashion by “equat[ing] the common law with statutory law.” But they do no such thing. Instead, Katyal and Clement correctly note that the longstanding British legal understanding–as evidenced both by its common and statutory law–was that children born abroad to British subjects were, themselves, “natural born” subjects at birth, without the need for naturalization proceedings. As Randy Barnett succinctly put it,

England had numerous and changing legal rules governing exactly who was and who was not a "natural born subject," which can be used to muddy the waters. But one consistently applied rule is particularly germane: The offspring of the King were natural born subjects of the King regardless of where they were born, whether on English territory or not.

As We the People–both individually and collectively–posses the sovereignty in the U.S., our offspring are the functional equivalent of he King’s offspring in England–i.e., “natural born” citizens of the U.S., regardless of where they are born.

Indeed, by the time of Blackstone’s Commentaries (published beginning in 1765), Blackstone himself acknowledged that the law of England had evolved to recognize “that all children, born out of the king’s ligeance [sic] whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception.”

McManamon also criticizes Katyal and Clement for placing “much weight” on the Naturalization Act of 1790, which stated 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 . . . .”

Assuming that modern Equal Protection Clause jurisprudence would not permit any constitutional distinction of children based upon fathers versus mothers who are U.S. citizens (Cruz’s mother was a U.S. citizen at his birth; his father was not)–and there is no legal reason, today, to think that a mother who is a U.S. citizen owes less “allegiance” to the U.S. than would the father–the law existing at the time of the U.S. founding suggests that, in interpreting Article II’s phrase “natural born citizen,” children born abroad to U.S. citizens should be considered “natural born.”

McManamon dismisses this evidence of the founding generation’s understanding of “natural born” by asserting:

The debates on the matter reveal that the congressmen were aware that such children were not citizens and had to be naturalized; hence, Congress enacted a statute to provide for them. Moreover, that statute did not say the children were natural born, but only that they should "be considered as" such.

This is specious argument. The 1790 Act reveals that the members of Congress–many of whom were heavily involved in the writing and ratification of the Constitution–understood that children of U.S. citizens who were born abroad should be “considered” as “natural born” in the sense that they did not need to undergo any naturalization process and were accordingly legally entitled to be considered U.S. citizens at the time of their birth–the same as an individual born within U.S. borders. The fact that Congress memorialized this common understanding in the 1790 Act does not, in any way, suggest that such children born abroad “had to be naturalized”; quite the contrary.

In short, while Trump and Harvard Law prof Laurence Tribe are correct that the U.S. Supreme Court has not definitively grappled with the full meaning of “natural born citizen,” the available evidence suggests that if/when the Court ultimately must grapple with it, the evidence points strongly in Cruz’s favor.

John, your posts are very good and helpful. I have enjoyed reading them. We have the same perspective.

Maelstrom, you have identified criteria you believe identifies a “natural born citizen,” but it has no binding legal authority. Historically, there have been several different ways a person could become a citizen without operation of a statute. They could be born on the soil, born under the authority, born to one citizen parent, born to two citizen parents, etc.

Every one of those is “natural.” It is a principle of long standing that a mother or a father may pass on what they hold title to in their own name. It simply isn’t necessary or just to deny the born person what is theirs by birth. Now if the situation is “complicated,” as you put it, because a person possesses two sets of citizenship rights, that does not cancel out the natural means by which they acquired those natural rights.

However, they do have the power to renounce one in favor of the other, and so remove the complication. This also is a natural and not a statutory right. The founders considered it essential to the American idea of citizenship that a person should have the right to expatriate, to disown one citizenship in favor of another, and furthermore this was for them under the domain of natural law, an expression of a fundamental human freedom.

So Cruz, having disowned his Canadian citizenship, has a clear and unclouded title to his naturally acquired American citizenship. There really is no problem here, other than the apparently desperate effort by some to read into the Constitutional text details it does not contain.

Peace,

You must have laws and monarchs to tell YOU what a Natural Born Citizen is...and I understand that...but, like the Founders, I reject the concept.

In my words, "We cannot be held hostage to the whims and preferences of long dead kings and potentates". So forget "monarchs" and "potentates". In our country the people are sovereign, and I dare you to "reject the concept".

NATURALLY, a child born in the US to parents who are US citizens can have no real obligation to ANYONE except the US.

Maybe, maybe not. But such a person would be, under any set of criteria I know of, a natural born citizen. But no one is challenging the natural born status of such a person. It's not an issue.

If there's something complicating that fact...you do not have a Natural Born Citizen...period.

There are classes of person who are all natural born citizens who do not meet some of your criteria, fully under natural law. As I have explained. No need to do so yet again.

This is NATURAL LAW. It's quite simple. Whether or not it is simple is not relevant. What is relevant is that you have departed from and no longer understand or recognize true natural law, but only your peculiar sub-set of it.

Whether that is a result of a genuine lack of understanding, or whether it is a feigned misunderstanding because you cannot accept a position that might lend support to one person who poses a threat to another person in a political contest, I can't say.

No, and Cruz did not make himself a born American. He was just born into being an American naturally, and so required no naturalization, either at birth or later. It’s just what he was when he was born. He inherited the status from his mother. Jus sanguinis, as it is sometimes called, by the blood. That required no naturalization.

One thing I’ve noticed in these debates is how hard it is for the legally inexperienced to address the concept of overlapping law. You can have a fact pattern where the citizenship is both natural at birth and also recognized, not created, by statute. It is a trap to believe they are always or necessarily mutually exclusive. This sort of overlapping law problem goes on all the time in contract law.

The point is, Cruz never did require any statutory process to become a citizen. He was one by virtue of his birth, by nature, through his mother. The fact of being a dual citizen does not remove his claim to be a natural born American. However, to remove confusion and misunderstanding, it was to his advantage to renounce his Canadian citizenship, so of course he would do that.

So until you come up with actual, legally binding authority asserting that one passage from Vattell as the final authority, your opinion is nothing more than just that, your personal opinion, which is not enough to deprive one who was born a second generation American of his right to run for the highest office in the land.

Peace,

In another thread- a fella is arguing that the Bellei Case made it clear that someone born outside the US had to be naturalized, and claims Cruz is very similar to Bellei- The court apparently found that Bellei was ‘naturalized’ and thus his citizenship could be stripped of him because He or his parents, or both did not meet the specific requirements for naturalized citizenship (Cruz however has- mother was citizen, lived in us for required time, Cruz himself lived in US for required time etc)

[[No, and Cruz did not make himself a born American. He was just born into being an American naturally, and so required no naturalization, either at birth or later.]]

I agree with this statement- My feeling is that it’s a birthright- a ‘natural law’ And that statutes that pertain to natural law can only confirm the natural law and can not alter them by setting up requirements to meet or anything like that- whereas Congress has been given power to set up requirements concerning situations like naturalization where and act of statute is needed to make someone something they aren’t- such as make an alien an American. Ted was no alien simply because his mother was a citizen. Had she not been- then Ted would have needed an act of statute to become a citizen

I’d like to get your opinion on the Bellei case as it does ‘appear’ to have consequences regarding Ted’s issue-

(I have a link to a CRS report that shows later cases ‘may have’ determined that the courts now view ‘certain cases of naturalization’ when considering ‘at birth’ and ‘by birth’ as Natural Born Citizenship (’By birth’ Meaning Jus sanguinis), and not in need of an act to make them citizens even though the term ‘naturalized’ is still used in their cases- there seems to be a distinction made now between naturalized NBC and a Naturalized citizen if I’m reading the report right-) (But to me the term ‘naturalized’ seems to confer an act- I’d have been more comfortable had the definition of ‘by birth’ been “Shall be a NBC without need of an act” or something along those lines- )

http://www.fas.org/sgp/crs/misc/R42097.pdf

Bob,

I've taken a closer look at Nguyen and concluded that yes, Maskell's take on naturalization after birth in Nguyen is accurate. In the contested portion of the CRS report, he states:

The Supreme Court recently recognized in Tuan Anh Nguyen v. INS, that federal law now specifically defines "naturalization" as the "conferring of nationality of a state upon a person after birth," 166 and thus it could be argued that by current definition and understanding in federal law and jurisprudence, one who is entitled to U.S. citizenship automatically "at birth" or "by birth" could not be considered to be "naturalized."

Available here: https://fas.org/sgp/crs/misc/R42097.pdf

At issue in Nguyen was the fact that the father had to meet different conditions than the mother to confer citizenship on the son. The complainant was claiming the controlling statute was an unconstitutional violation of the equal protection clause, because it had different requirements for the father versus the mother. The father, to establish citizenship-worthy paternity, had to have more than just a dna connection to the child, but also had to demonstrate a real, personal connection that could only be accomplished after the child was born.

The Court, after concluding the statutory distinction between genders was not a violation of equal protection, addressed another of Nguyen's arguments, that the offensive subsection, had it been found unconstitutional, would have been severable from the Immigration and Naturalization Act:

In this regard, it is significant that, although the Immigration and Nationality Act contains a general severability provision, Congress expressly provided with respect to the very subchapter of the United States Code at issue and in a provision entitled "Sole procedure," that "[a] person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this subchapter and not otherwise." 8 U.S.C. Â§ 1421(d); see also Miller, supra, at 457-458 (Scalia, J., concurring in judgment). Section 1421(d) refers to naturalization, which in turn is defined as "conferring of nationality of a state upon a person after birth." 8 U.S.C. Â§ 1101(a)(23). Citizenship under section Â§1409(a) is retroactive to the date of birth, but it is a naturalization under section Â§1421(d) nevertheless. The conditions specified by section Â§1409(a) for conferral of citizenship, as a matter of definition, must take place after the child is born, in some instances taking as long as 18 years. Section 1409(a), then, is subject to the limitation imposed by Â§1421(d).

Available here: https://www.law.cornell.edu/supct/html/historics/USSC_DN_0099_2071_ZO.html

The above passage is classic dicta, placed there to offer clarity to questions that might arise in inferior courts, but not controlling law the way a holding would be. It establishes that the paternity requirements are impliedly not severable from the act as a whole, which has the further implication that the Act would have to be re-legislated from scratch to change the provision in question.

And Maskell does not present this passage as controlling law but as informative of how SCOTUS views the federal law regarding "by birth" versus "naturalized" citizenship. Maskel's analysis is accurate because the condition of paternity (post-natal connection to the child) is inherently a condition that cannot be met at the moment the child is born. Given that Nguyen's mother was an alien, she could not convey citizenship automatically, at the moment of birth, which she certainly could have done had she been a bona fide citizen at that moment of birth.

However, unlike the mother, the best the citizen father could do would be to meet the required "connectedness" condition sometime after the birth, and only then have the citizenship attribute applied retroactively, back to the date of birth, but by process of law, and not as a condition inherent in the birth. Therefore, Maskell is correct in identifying an implicit federal dichotomy between automatic "by birth" citizenship ("natural born") versus citizenship resulting from "after birth" events ("naturalization").

Peace,

SR

[[The father, to establish citizenship-worthy paternity, had to have more than just a dna connection to the child, but also had to demonstrate a real, personal connection that could only be accomplished after the child was born.]]

Thank You for explaining this- I had read that this requirement had figured in fairly heavily into the naturalization acts especially for the mother because she was usually the one who had the most contact with a child as far as nurturing and forming a child’s moralities and allegiances, which was why later naturalization acts changed it from father to ‘either’ parent

[[However, unlike the mother, the best the citizen father could do would be to meet the required “connectedness” condition sometime after the birth, and only then have the citizenship attribute applied retroactively, back to the date of birth, but by process of law, and not as a condition inherent in the birth. Therefore, Maskell is correct in identifying an implicit federal dichotomy between automatic “by birth” citizenship (”natural born”) versus citizenship resulting from “after birth” events (”naturalization”).]]

Ok- it’s all falling into place for me now regarding the CRS report- I have always felt that citizenship should be ‘birthright’ or ‘citizenship by descent’ in a country made up of individual sovereigns (we the people)-

[[The above passage is classic dicta, placed there to offer clarity to questions that might arise in inferior courts, but not controlling law the way a holding would be. ]]

Could there ever be a SC ruling on the issue to settle it? Or will it always be ‘inferred’ that at birth and by birth are to be considered NBC?

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