Ted Cruz as a Natural Born Citizen

Ted Cruz[The following is a guest post from Professor J. Gordon Hylton, a former member of the Marquette Law School faculty.]

The debate continues over the eligibility of Sen. Ted Cruz for the United States presidency under the Constitution’s “natural born citizen” clause in Article II, Section 1. (Art II, §1 provides, in part, “No 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, neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”)

The question is whether the Canadian-born Cruz, whose mother, but not father, was a United States citizen, qualifies as a “natural born citizen.” Unfortunately, the neither the Constitution itself nor the surviving records of the Constitutional Convention of 1787 define the phrase “natural born citizen,” and the Supreme Court has never offered an authoritative interpretation of the clause.

Frequently cited as support for the assertion that individuals born abroad with at least one-American born parent are qualified to hold the office of President is the 1790 Naturalization Act, the country’s first statute setting out the path to citizenship for non-citizens. (Ted Cruz himself has repeatedly made this claim.)

The statute in question was enacted on March 26, 1790, by the first Congress, just a little more than two and a half years after the September 17, 1787 signing of the Constitution by members of the Constitutional Convention. Certainly, if any legislative body was likely to understand the intended meaning of the “natural born citizen” reference in Article II, it would have been the first United States Congress, which included in its ranks 20 of the 55 members of the Constitutional Convention (11 in the Senate and 9 in the House of Representatives).

The Naturalization Act did, in fact, address the citizenship status of individuals born abroad of American parents, and it did indicate that they were to be treated as though they were “natural born citizens.” However, the purpose of the Naturalization Act was not to define who was or was not eligible to be president—that was the responsibility of the Constitution itself, not the Congress—but rather it was to determine the ways in which “non-natural born citizens” were to become eligible to be citizens of the United States.

Article I, Section 8 of the Constitution delegates this power to the Congress, to wit: “The Congress shall have Power … to establish an uniform Rule of Naturalization.”  Nothing in Article I of the Constitution (which deals with the powers of Congress) authorizes it to clarify the eligibility requirements for the presidency.

The Naturalization Act divided the pool of potential citizens into two categories. The first included aliens who could be admitted to citizenship if they were white, of good character, had resided within the United States for two years (and their current state of residency for one year), and were willing to take an oath of allegiance to the United States.  Also admitted as citizens were any children of those admitted to citizenship under this provision, so long as they were under age 21 and residing in the United States.

The second category addressed by the statute were those “children of citizens of the United States that may be born beyond the sea or out of the limits of the United States.” In regard to such individuals, the statute provided that they “shall be treated as natural born citizens,” so long as their fathers had at some point been residents of the United States.

Two things are to be noted. First, the statute does not say that children born abroad are “natural born citizens;” rather, it directs that they be treated as though they were.  The effect of this is to excuse them from the process described for true aliens seeking citizenship.  For purposes of determining citizenship, they are like “natural born citizens,” but they are themselves not “natural born.”  Second, this provision has absolutely nothing to do with eligibility for the office of President.

Had children born abroad to United States citizen parents been viewed as “natural born citizens,” then there would have been no reason to address their status in the Naturalization Act, which deals exclusively with those who are not automatically citizens. In the 1790 Act, Congress made such individuals citizens, but it was not intending to qualify them for the presidency by doing so (nor did it have the power to do so).

While modern constitutional norms were not necessarily well established by 1790, there is no way to read the language of the 1790 Naturalization Act without concluding that the members of the generation that drafted the United States Constitution believed that only those born within the “limits of the United States” could be “natural born citizens.”

As 21st century Americans we may not be bound by this original understanding, but it is simply incorrect to claim that the 1790 Naturalization Act somehow identified the foreign-born children of American citizens as “natural born citizens.”

This Post Has 6 Comments

  1. Sean Samis

    Sir, it is always a pleasure to read your take on these kinds of questions.

    Between the lines, it seems that advocates of “original intent” jurisprudence have a reasonable argument that Mr. Cruz is not eligible to be President. Though I am not a supporter of Cruz, I also do not accept “original intent” as a rational basis for jurisprudence; it is too mystical for me.

    At the end of the day, I have to say I hope the matter is mooted by popular vote and not in the courts.

    sean s.

  2. Gordon Hylton

    In regard to the lawsuit filed in Illinois regarding Sen. Cruz’ eligibility to run for the presidency, it seems to me that the matter comes down to the meaning of the phrase “Natural Born Citizen” in Article 2.

    If it means a person born a citizen of the United States under the standards of the naturalization laws at the time of the persons birth, then Senator Cruz is clearly a natural born citizen.

    However, if the provision refers to someone whose citizenship status does not require a statute, in other words, a more limited category, then Senator Cruz would not appear to meet that standard.

    If the latter is the meaning, then past presidential contenders George Romney (1968) and Lowell Weicker (1980) were not eligible for the office for the same reason. If we assume that birth in a U.S. Territory, military base, or embassy with citizen parents meets the requirement, then John McCain and Barry Goldwater were okay.

    If in country birth to parents who are United States citizens is required of a “natural born citizen” then Charles Evans Hughes was not eligible to be president in 1916 when he was the Republican Party’s nominee. By the same standard, Marco Rubio, would not be eligible either, if it is true. as has been widely reported, that neither of his parents were United States citizens when he was born in Florida in 1971.

    1. Frederick Wertz

      I’m not a lawyer or a legal scholar, but I must say that I can now fully understand why lawyers are so distrusted. First, George Romney was born to two US citizen parents and second, it is settled law re: Minor v. Happerset when the Supreme Court Opinion from Chief Justice Waite documented “Under the common law, according to the court, ‘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.'”

  3. Rudolph Houck

    I only skimmed, I admit. But I did not see anything about the possibility that his mother lost her US citizenship before Raphael Theodore’s birth. I BELIEVE that she would have lost her US citizenship IF she had voted in a Canadian election. I have read that she was entitled to do so.

  4. Frederick Ernest Wertz

    I visited this discussion previously and have read all of the well thought out comments from the law community. Why have none of you made an attempt to connect the 14th Amendment to what is clearly stated in Article II? After all this is a discussion among lawyers. I will tell you why, there is no connection that even remotely documents that the 14th Amendment has anything to do with Article II. Not only that, but even a dumbo like me knows that Article I to run for the legislature requires one be a citizen which was clarified in the 14th Amendment which is solely about being a citizen and not about being a Natural Born Citizen (NBC). Scholars make the case that Won Kim Ark makes the case that NBC provides a benchmark for addressing this issue, but this case was about being a citizen and not a NBC. Also, rebuffed by the scholars is Minor v Happersett in which Chief Justice Waite states that it was never doubted that a NBC is one born to two US citizen parents at time of birth. Please also review the paper I have written on this subject at the link below which also includes 27 House Bills that Congress proposed on this issue citing to change the requirement in Article II from NBC to that of Citizen, https://1drv.ms/w/s!AoWIYvAh5fHnpQXY5PEZaJp5JFTJ?e=xJ7als

  5. Frederick Ernest Wertz

    One important comment I neglected to state is that there is a case to be made that the Article II requirement clearly does not outline or make even the remotest case that the requirement to be a Natural Born Citizen means that it must be just a US citizen. I grew up knowing the difference, but as we all know today history has no place in America today. The only way to cut through this and clear up the issue is to Amend the Constitution to include clarifying information defining what the term Natural Born Citizen in Article II means. My apologies on providing negative comments about lawyers as they provide for an important need to all Americans.

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