Donald Trump Is Right About Cruz's Presidential Eligibility

After many years of debate, the meaning of "natural born citizen" remains unsettled.

During last week's Republican presidential debate, Ted Cruz said it's "really quite clear" he is eligible to run for president even though he was born in Canada, because his mother was a U.S. citizen. His rival Donald Trump insisted "there is a serious question" as to whether Cruz qualifies as "a natural born citizen," one of the constitutional requirements for the presidency.

Here is a sentence I never thought I'd type: Donald Trump is right. Cruz describes a consensus that does not exist.

The Texas senator is not alone in doing that. In a Harvard Law Review essay published last March, Neal Katyal and Paul Clement-solicitors general under Barack Obama and George W. Bush, respectively-say "there is no question that Senator Cruz has been a citizen from birth and is thus a 'natural born Citizen' within the meaning of the Constitution." They call claims to the contrary "specious" and "spurious."

No doubt Mary Brigid McManamon, a legal historian at Delaware Law School, would object to those adjectives. In a Washington Post op-ed piece published last week, she says it's "clear and unambiguous," based on British common law during the Founding era, that Cruz is not a "natural born citizen."

As Catholic University law professor Sarah Helen Duggin and Maryland lawyer Mary Beth Collins show in a 2005 Boston University Law Review article, these dueling perspectives are the latest installment of a long-running scholarly debate about the meaning of "natural born citizen." Contrary to Cruz, Katyal, Clement, and McManamon, Duggin and Collins view the phrase as "opaque" and dangerously "ambiguous" (as well as outdated, unfair, and antidemocratic), arguing that it should be excised by amendment.

Harvard law professor Laurence Tribe, whom Trump likes to cite, has taken both sides in this debate. In 2008 Tribe and former Solicitor General Ted Olson coauthored a memo that said John McCain, the GOP nominee that year, was eligible for the presidency even though he was born in the Panama Canal Zone.

Since the Constitution does not define "natural born citizen," Tribe and Olson wrote, to illuminate the term's meaning we must look to the context in which it is used, legislation enacted by the First Congress, and "the common law at the time of the Founding." They said "these sources all confirm that the phrase 'natural born' includes both birth abroad to parents who were citizens, and birth within a nation's territory and allegiance."

Writing in The Boston Globe last week, by contrast, Tribe said "the constitutional definition of a 'natural born citizen' is completely unsettled." He added that based on the originalist approach Cruz favors, he "ironically wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on US soil to be a 'natural born' citizen." Fordham law professor Thomas Lee makes a similar argument in the Los Angeles Times.

Satisfying as it may be for Cruz's opponents to see him hoist by his own interpretive petard, this way of framing the issue is misleading, because the debate about the meaning of "natural born citizen" is mainly about what the original understanding was, as opposed to whether the original understanding should prevail. Originalists such as Georgetown law professor Randy Barnett and University of San Diego law professor Michael Ramsey argue that their approach favors Cruz.

Another originalist, Independence Institute senior fellow Rob Natelson, who describes himself as an "admirer of Senator Cruz," is not so sure. "Although Senator Cruz's belief that he is natural born may ultimately be vindicated," Natelson writes on The Originalism Blog, "the case against him is very respectable."

Case Western law professor Jonathan Adler, who initially said "there is no question about Ted Cruz's constitutional eligibility to be elected president," later conceded he "may have been too quick to suggest that this issue is completely settled." I was similarly chastened to realize it's not safe to assume everything Donald Trump says is a lie.

Even if courts invoke the 14th Amendment, that was debunked by Greetings Puny Humans, not a genuine interpretation.

Since it was my argument that GPH allegedly debunked, please let me debunk the bebunking.

Here is what GPH had to say, leaving out the gratuitous insults and oprobrium:

As for the 14th amendment, women were already citizens of the United States. The 14th amendment didn't even give them the right to vote. It only provides for equal "protection" under the law. If it is as Valentine says, then there should never have been a need for the 19th amendment. If protection means "treated the same way as men," this should have been the case. If women did not even receive the right to vote from the 14th amendment, then it's impossible to claim that it changed the definition of natural born citizen.

Here's the story of the 14th Amendment:

Women have been considered citizens of the United States since the founding, but women were generally not extended the vote. Voting eligibility rules were determined by the individual states, and for the most part still are.

The 14th Amendment provides, among other things, this: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of law; nor deny to any person within it's jurisdiction the equal protection of the laws."

Now, back in 1872, a Mrs. Virginia Minor, a citizen of the State of Missouri became aware of the newly ratified Fourteenth Amendment and noticed that it appeared to create a conflict in her State, whose State Constitution contained this provision: 'Every male citizen of the United States shall be entitled to vote.'

Like most readers of this very post, she thought to herself, "If No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor deny them the equal protection of the laws, then the State of Missouri can no longer refuse to allow women the right to vote while at the same time extending it to men," and filed suit against a Mr. Happersett, the local registrar of voters.

Silly Mrs. Minor.

You see, after this case worked its way to the Supreme Court of the United States, Mrs. Minor learned that despite the plain language of both the Fourteenth Amendment and the Constitution of Missouri, there was no conflict between them.

You see, the Supreme Court ruled in Minor v. Happersett that voting is not a right that accrues to a person by virtue of citizenship that cannot be abridged by a local government.

The ruling contains many long and ardent discussions of the fact that women are citizens of the United States and have all the same rights as men.

But, it concludes that the right to vote is not one of them.

In reaching this decision it is worth noting that the Court found that suffrage is not co-extensive with citizenship:

Besides this, citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote. The same provision is to be found in the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas.

And so:

Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we AFFIRM THE JUDGMENT.

So, voting is not a right inherent in citizenship, or so the Court decided, leading eventually to the adoption of the 19th Amendment. But in so deciding, the Court did not disparage any other right that might accrue according to one's citizenship. The decision in Minor v. Happersett was only concerned with sufferage.

Whether Minor v. Happersett was rightly or wrongly decided is a discussion of possible interest, but it is not relevant to whether or not women naturally bequeath their condition to their children, and whether that natural condition must be respected by the law.

The Court did say the following:

There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment 'all persons born or naturalized in the United States and subject to the jurisdiction thereof' are expressly declared to be 'citizens of the United States and of the State wherein they reside.' But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an [88 U.S. 162, 166] association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.

For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words 'subject,' 'inhabitant,' and 'citizen' have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more.

But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country. Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist the case must be dismissed. Notwithstanding this the records of the courts are full of cases in which the jurisdiction depends upon the citizenship of women, and not one can be found, we think, in which objection was made on that account. Certainly none can be found in which it has been held that women could not sue or be sued in the courts of the United States. Again, at the time of the adoption of the Constitution, in many of the States (and in some probably now) aliens could not inherit or transmit inheritance. There are a multitude of cases to be found in which the question has been presented whether a woman was or was not an alien, and as such capable or incapable of inheritance, but in no one has it been insisted that she was not a citizen because she was a woman. On the contrary, her right to citizenship has been in all cases assumed. The only question has been whether, in the particular case under consideration, she had availed herself of the right.

To summarize, Minor v. Happersett concerned itself with sufferage only. The Court did not decide on any other right or privilege of Citizenship but it did in its reasoning imply that the rights of women that accrue by virtue of citizenship are essentially congruous with the rights of men.

I argue that would include the right of women to bequeath their citizenship upon their children in the same manner and to the same extent as men.

Good summary of the issues in Minor. I've tried to summarize it before to explain why the famous "it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens" section was not the court's attempt to define the term, just to say "we know Minor's a citizen-there's no doubt about that." What I never realized before is that it probably means they'd have to have let her run for president but still prevent her from voting for herself.

Since you raised this, I'd like to offer my comment on this much quoted and most misunderstood paragraph of Minor. V. Happersett. Here is the entire paragraph.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words 'all children' are certainly as comprehensive, when used in this connection, as 'all persons,' and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.

You very correctly note that this paragraph was not the Court's attempt to define the term (natural born citizen), but just to say "we know Minor's a citizen - there's no doubt about that."

This paragraph has been widely cited as evidence that the status of natural born citizen requires two citizen parents. Not so. The paragraph was offered in support of Mrs. Minor's citizenship only. The definition offered was sufficient, but it was not exclusive.

Not only that, the Court did not actually say "two citizen parents". In every place, the formulation refers simply to 'children' and 'parents':

...never doubted that all children born in a country of parents who were its citizens...

...children born within the jurisdiction without reference to the citizenship of their parents

...all children born of citizen parents...

Note that the plural 'parents' corresponds to the plural 'children'. Never does the court refer to plural 'parents' of a single child. It cannot be inferred from this that both parents of each child must be citizens. The plural is applied across the class of children and must include any child with a citizen parent as either mother or father since both are parents.

This is not different from the grammatical formulation: "The children and their parents gathered to hear the address by the headmaster."

This sentence does not imply and cannot be taken to imply that each parent of every child had gathered to hear the headmaster speak, only that there are multiple children and multiple parents of unspecified but presumably mixed genders. That's it.

But the more important point is the one you raise. The Court did indeed confirm (as dicta) that a child born in the United States to two citizen parents meets the criteria for citizenship by birth, and the Court speculated that a child born in the United States of non-citizen parents might also be a citizen by birth. But, the Court did not speculate or rule on any other combination of circumstances that might result in citizenship by birth - simply because they did not need to in order to establish that Mrs. Virginia Minor was indeed a citizen.

And, that was their only purpose in this particular exposition of the law.

You took some wind out of my sails, Mister Valentine. And will consider your post [above] the ‘last word’ on this matter [in a legal sense] if it is not effectively countered.

And I thank you. I would rather believe in Cruz as a constitutional scholar.

Been goading people for some time now. And finally, someone managed to do it.

Regarding Natural Born Eligibility and the 14th Amendment ...

Minor v. Happersett ...

“The ruling contains many long and ardent discussions of the fact that women are citizens of the United States and have all the same rights as men. But, it concludes that the right to vote is not one of them.”

[Well done!]

“So, voting is not a right inherent in citizenship ...”

‘Notwithstanding this the records of the courts are full of cases in which the jurisdiction depends upon the citizenship of women, and not one can be found, we think, in which objection was made on that account.’

[That would appear to back your argument, ‘not one can be found, we think ...’ But a court opinion with the addition, ‘we think’, does not sound very solid to me.]

‘The Court did not decide on any other right or privilege of Citizenship but it did in its reasoning imply that the rights of women that accrue by virtue of citizenship are essentially congruous with the rights of men. I argue that would include the right of women to bequeath their citizenship upon their children in the same manner and to the same extent as men.’

I agree that is a strong argument, probably strong enough to win in court. But not bullet-proof when scholars refer to original intent.

A woman’s rights are not violated if her son is not ‘natural born’. If you think that argument is gimmicky and unfair, I agree. But we must not expect the other side to be fair.

We would be much better off with solid, clearly eligible candidates. And I would support a constitutional amendment to make a brilliant patriot such as Cruz eligible beyond the shadow of a doubt. Then people could better unite behind him.

I still am concerned that Senate Majority-Traitor McConman has a large enough fig leaf to let him keep his foot over Cruz’ neck on this issue without shame [and a dagger in the Tea Party’s back].

Since it was my argument that GPH allegedly debunked, please let me debunk the bebunking.

What's bizarre about this is that Valentine names me directly, fancies that he is "debunking" me, but then doesn't bother to ping me at all. Next, looking at the "debunking," no debunking actually happened. In fact, there is no ARGUMENT at all!:

In other words, Valentine is giving us a long lecture on a court case which he argues doesn't even address the question at hand directly. He then argues that the court case found that the rights of citizenship for women are "essentially congruous with the rights of men." But then he doesn't bother to complete the thought. He simply asserts: "I argue that women can bequeath citizenship in the same manner and extent of men!"

So where's the argument!? The next step of the argument should be "passing natural born status to children is a universal right associated with citizenship," and then you give this magical thing we call "reasons." Right now Valentine's argument is just A --> B --> ??? ---> D.

Whatever the case, the entire exercise is irrelevant because the argument of the court is that women were always considered citizens, even in previous court cases which argued over whether women could inherit property, and that the 14th amendment did not add any privileges, it merely provided additional guarantee of protection for such rights they already had. From the court Syllabus:

"The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had."

Maybe that's why Valentine didn't bother to ping me. He knows I have this weird, magical power that I like to call "Looking the Court Case up."

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