[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.”