Donald Trump’s recent comments that Sen. Ted Cruz may not be constitutionally eligible to be President of the United States has sparked discussion on the Constitution’s Natural Born Clause.
Article II of the United States Constitution states: “No person except a natural born Citizen … shall be eligible to the Office of President.” It also stipulates that the president must “have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
There are two ways judges can look at this constitutional provision: one conservative, one liberal.
Conservative Constitutional Interpretation
Conservatives look at the original meaning of the Constitution’s text, which is determined by examining the plain meaning, history, and structure of the text. This is called “originalism,” what many non-lawyers call being a “strict constructionist.”
There are only two ways to obtain citizenship: automatically at birth, or after birth through some legal process such as immigration and naturalization. The plain meaning of “natural born citizen” is understood to be a person who was a citizen “naturally,” referring to the conditions that attended their natural birth into this world, as opposed to undergoing a citizenship process later in life or through immigration.
It does not mean—and has never meant—that both parents had to be U.S. citizens, or that a person had to be born on U.S. soil.
There are no federal records of Cruz being made a citizen under the process established by the Immigration and Nationality Act. The only other possibility under the law is that he was an American citizen at the moment he was born.
Since he was born on foreign soil and his father was not an American citizen (born in Cuba, resided in America legally, then later became a Canadian citizen), the only possible explanation is that he acquired American citizenship at birth because his mother was an American citizen. His mother—whose maiden name was Eleanor Elizabeth Darragh—was born in Delaware.
The strongest historical evidence of the meaning of Article II’s Natural Born Clause is from a 1790 law. The Supreme Court has long held, and reaffirmed as recently as 2014 in its landmark religious-liberty First Amendment case, Town of Greece v. Galloway, that federal statutes passed by the First Congress (1789–1790) are strong evidence of the meaning of constitutional terms. (The original Constitution was ratified in 1789 and the Bill of Rights was ratified in 1791.)
On March 26, 1790, the First Congress passed a law providing, “And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens.” This appears to be the only legal text from the time of the Constitution’s adoption that defines the term “natural born citizen.” This included children born to an American mother when the father was a non-citizen.
This is consistent with English law, under which the Framers and the First Congress had lived their entire lives until the American Revolution. Under English law in the 1700s, a child was a “natural born” British subject if he was born to British parents when those parents were outside the British Empire.
In terms of structure, the language of the Natural Born Clause parallels two other constitutional provisions, one requiring that candidates for U.S. House must be (1) at least 25 years old, (2) a U.S. citizen for seven years, and (3) a resident of the state that elects them at the time of their election. Similarly, U.S. senators must be (1) at least 30 years old, (2) a U.S. citizen for nine years, and (3) a resident of the state that elects them at the time of their election.
Structurally, these three provisions are identical. They specify (1) how old you must be, (2) how long you must be an American citizen, and (3) how long you have been a resident of the United States. Under that reading, natural born citizen would require that a president be an American citizen his whole life, meaning a citizen at birth.
Liberal Constitutional Interpretation
Liberals look to either what they claim is the purpose of a constitutional provision (called “purposivism”) or the practical outcomes caused by any particular interpretation (called “consequentialism”). Together, non-lawyers refer to these as believing in a “Living Constitution.”
The purpose of the Natural Born Clause was to ensure that every president would be loyal to America over every other nation on earth. At the time, the primary concern was with European nations. The president was commander-in-chief of the military as the head of foreign diplomacy, and the Framers of the Constitution did not want a president who would be secretly devoted to his foreign homeland above the country of which he had become the head of state.
The practical consequences of the different suggested meanings of the Natural Born Clause can be seen in the past half-century. If Cruz is ineligible to be president, then he is not the first presidential candidate who should have been disqualified.
The GOP’s 2008 nominee, Sen. John McCain, was born in the Panama Canal Zone, where the United States had a military presence, but which was not sovereign U.S. soil. The fact that his parents were American citizens and that his father was serving in the Navy would make no difference. Also Gov. Mitt Romney’s father, Gov. George Romney, who ran in 1968, was born in Mexico. He would have been ineligible. And Sen. Barry Goldwater, the GOP’s 1964 nominee, was born in a U.S. territory, Arizona, years before Arizona became a state in 1912.
The view that a person must be born on U.S. soil would mean that in addition to Cruz, all those others were never eligible to run for president. Under the view that a person must be a citizen at the moment of birth, Cruz, McCain, Romney, and Goldwater are and were all eligible candidates.
It is because both conservative and liberal views of the Constitution—both originalism and the “Living Constitution”—seem to point in the same direction here, that top constitutional lawyers and legal scholars on both sides of the spectrum (liberal Democrats and conservative Republicans) agree. Conservative Paul Clement (former U.S. solicitor general and possibly the greatest Supreme Court lawyer practicing today) and liberal Neal Katyal (law professor and former deputy solicitor general) wrote an analysis in the Harvard Law Review last March making the case that a person born to an American mother in Canada is a natural born citizen. Libertarian Ted Olson (former U.S. solicitor general) and liberal Laurence Tribe (professor at Harvard Law School and perhaps the most prolific constitutional scholar of this generation) hold a similar opinion.
The only well-known lawyer thus far objecting to Cruz appears to be Ann Coulter, who is well known as a lawyer because she is a bestselling author and media commentator, but not an accomplished constitutional litigator, nor a constitutional scholar. She fails here to perform any careful legal analysis, instead confining her analysis to the length of a tweet, equating those who think Cruz is a natural born citizen with those who think the Fourteenth Amendment guarantees birthright citizenship to the children of illegal aliens.
(Author’s Note: I have written eight scholarly legal publications on the Constitution, and a five-part series for Breitbart News arguing that the Fourteenth Amendment’s Citizenship Clause does not confer citizenship on the children of noncitizens.)
Resolving this Question
One of the few persons who would likely have standing to sue over Cruz’s Article II eligibility would be another Republican candidate running for the GOP nomination. If Donald Trump doubts that Ted Cruz is a natural born citizen, he can file suit immediately in U.S. district court. A federal judge would almost certainly expedite consideration of the case, and any appeal would likely be decided on an emergency basis.
Trump could resolve this matter quickly, if he believes this is a genuine issue.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.