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Fordham Law Prof: Ted Cruz Not ‘Natural Born’ Under ‘Originalist’ View of Constitution

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Thomas Lee, a professor of constitutional law and international law at Fordham Law School, writes in the Los Angeles Times that Ted Cruz would not be considered a “natural born citizen” under an originalist view of the Constitution.

From the LA Times:

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Under either a textualist or a “living Constitution” theory, Cruz is a “natural born Citizen,” eligible to be president; under an originalist view, however, he isn’t. It’s the conservative theory that would exclude the conservative Cruz from presidential eligibility.

To an originalist, a “natural born Citizen” is a person who is a citizen of the United States under “natural” principles of law in 1788. Two such principles were then in play in the U.S. Jus soli — the law of soil — was the principle that a child was subject or citizen of the sovereign who ruled the land or seas on which the child was born. Jus soli was viewed as a part of the common law of England, which was adopted by the American states. Jus sanguinis — the law of blood — held that a child’s citizenship flowed from the parents’ allegiance, regardless of place of birth. This principle was prevalent in continental Europe, and in England it was the basis for an exception to jus soli for children born there to foreign ambassadors.

The principle of jus sanguinis in 1788 applied to patrilineal descent only: A person born in a foreign country was viewed as a “natural born Citizen” of his or her father’s country. However odious it seems today, a child born of a woman whose citizenship was different from her husband’s — much rarer then than today — could not be a “natural born Citizen” of the mother’s country. That idea wasn’t even considered until 1844 in Victorian England.

The upshot is that to an originalist, someone like Cruz — born in a foreign country (and therefore not a natural born citizen of the United States by jus soli) and to a Cuban citizen father (and therefore not a natural born citizen of the United States by jus sanguinis ) — is not eligible to be president.

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