Recently, the question of who is Constitutionally eligible to serve as President of the United States has become a national issue. There were those that claimed President Barack Obama was ineligible to be President, because he was actually born in Kenya and those that argued “natural born citizen” meant both parents had to be United States citizens. The issue has again risen to the forefront, because Donald Trump has claimed that Senator Ted Cruz is not a “natural born Citizen” based on his birth in Canada. This blog will examine the Constitutional requirements to be President and what is meant by “natural born Citizen.”
Article II, Section 1 states, “[n]o person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” Since, Sen. Cruz was clearly not a Citizen of the United States at the time of the adoption of the Constitution, he has to be a “natural born Citizen” to be eligible to the Office of President. Unfortunately, “natural born Citizen” is not defined, at all, in the Constitution. To interpret the Constitution, we must look to the British common law at the time the Constitution was adopted and at the actions and words of the First Congress, because so many of the members of that Congress were directly involved in the drafting of the Constitution.
First, in looking at the British common law, the laws in effect in the 1700’s stated that children born outside of the British Empire, but to subjects of the Crown were subjects themselves and even explicitly used the term “natural born” to describe these children. 128 Harv. L. Rev. 161, March 11, 2015. In fact, as early as 1343, the British Parliament passed a statute stating “there was no manner of doubt that the children of our Lord the King, whether they were born on this side of the sea or beyond the sea, should bear the inheritance of their ancestors.” In 1677, 1708, and 1731 the British Parliament passed additional statutes that explicitly said children born to fathers (even mothers were included in the 1677 statute) that were natural born subjects of the Crown were natural-born subjects of Britain. United States v. Wong Kim Ark, 169 U.S. 649 1898. Although not dispositive of this inquiry, it is certainly informative to note that even in France, around the time of the drafting of the U.S. Constitution, it was the general rule and understanding that “children born in a foreign country, of a French father…, were also deemed Frenchmen.” Thus, the British common law, at the time of the drafting of the U.S. Constitution, clearly embraced the concept that a child born to a citizen of Britain, at least to the father, was a natural born Citizen.
Likewise, the acts of the First Congress fall in line with the British common law. In 1790, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were in fact U.S. citizens at birth and stated they “shall be considered as natural born citizens.” Even more persuasive than just the acts of the First Congress is the fact that by successive acts Congress has routinely provided foreign-born children of U.S. citizens with citizenship at birth. These statutes have been passed by Congress in 1790, 1795, 1798, 1802, 1804, and 1855. United States v. Wong Kim Ark, 169 U.S. 649, 1898. The statute in force when Sen. Cruz was born, enacted in 1952, provided for the citizenship at birth of a child born outside of the United States to a parent citizen, so long as that parent had been physically present in the United States for one year prior to the birth of the child. Act of June 27, 1952, 66 Stat. 235-236; Title III, ch. 1, section 301(a)(7). It is safe to say, since the drafting of the Constitution, it has been widely understood that children born abroad to a citizen of the United States was also a citizen at birth.
Interestingly, this debate has only become so intense in recent elections. Senator Barry Goldwater was born in Arizona before it was a state, but he was the Republican Presidential nominee in 1964. Governor George Romney was born in Mexico to U.S. citizen parents and ran for the Republican Presidential nomination in 1968. And, in 2008 when Senator John McCain, who was born to U.S. citizen parents in the Panama Canal Zone, was running for President as the Republican nominee, the U.S. Senate unanimously passed a resolution stating that any interpretation of the natural born citizenship clause as limited to those born within the United States was “inconsistent with the purpose and intent of the ‘natural born Citizen’ clause of the Constitution of the United States, as evidenced by the First Congress’ own statute defining the term ‘natural born Citizen.’” 128 Harv. L. Rev. 161, March 11, 2015. S. Res. 511, 110th Cong. (2008).
Now, there are those that argue Sen. Cruz is not a natural born Citizen because “a natural born citizen cannot be someone whose birth entitled him to citizenship because of a statute – in this case a statute that confers citizenship on a person born abroad to an American parent.” “Ted Cruz is Not Eligible to be President” www.slate.com, Feb. 8, 2016. Or because “the framers of both the original Constitution and the 14th Amendment seem to have distinguished between constitutionally and legislatively conferred citizenship. Those who acquire their citizenship by virtue of birth in the United States are, according to the 14th Amendment, constitutionally conferred citizens, which also seems to be the original understanding of “natural born” citizens.” Ted Cruz Isn’t a ‘Natural Born’ Citizen www.usnews.com, Feb. 19, 2016. The problem with these arguments is that, as shown above, the British common law and the acts of the First Congress (and subsequent Congress after subsequent Congress) has afforded citizenship, even “natural born” citizenship, on the children of citizens born abroad. This was discussed in depth over 100 years ago by the United States Supreme Court in United States v. Wong Kim Ark. The second problem with this argument is that the 14th Amendment was not ratified until July 9, 1868 – well after the drafting of the Constitution. Considering the British common law and the actions of the First Congress, both sources routinely approved by the United States Supreme Court to be used in interpreting the Constitution, support this position, it is antithetical to use the language found in the 14th Amendment to argue otherwise.
Although it would be quite ironic for Sen. Cruz to be ineligible to run for President based on an originalist approach to the Constitution – considering his love of that theory – it just doesn’t fit here. As Congress has recognized since the founding of this nation, a foreign-born child of a U.S. citizen is a “natural born citizen” and is eligible to serve as President.