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What is a “natural-born citizen”?

Posted by on January 14, 2016 in In The News - 1 Comment
Ted Cruz (left) and Donald Trump (right) may be asked tonight to give their opinions on the meaning of natural-born citizenship.

Ted Cruz (left) and Donald Trump (right) may be asked tonight to give their opinions on the meaning of natural-born citizenship.

Donald Trump is at it again.  Trump led a birther movement for people who were skeptical of President Obama’s birthplace, even though his birth certificate clearly states that he was born in Hawaii.   It was an attempt to declare Obama illegitimate.  Now, Trump is attacking a fellow Republican using similar tactics. Is Senator Ted Cruz eligible to be President of the United States? Under Article II, Section 1 of our Constitution, a presidential candidate must be at least thirty-five years old and he or she must be a natural-born citizen. What did our framers mean by a natural-born citizen?  Ted Cruz’s mother is a U.S. citizen and his father was born in Cuba. Cruz himself was born in Canada where he lived until he was four years old.  Given his mother’s American citizenship, when they moved from Canada to the United States, Cruz did not have to go through a naturalization process to gain citizenship. But is being a U.S. citizen the same thing as being a natural-born U.S. citizen?

This issue arose when Senator John McCain ran for President in 2008.  McCain was born in the Panama Canal military base to two parents who were American citizens.  Many argued that the Panama Canal was under U.S. control and it was therefore a de facto extension of our country.  During this debate, many people were hesitant to suggest that the children born to our military families living abroad would not be eligible to run for the highest office in our land.  It’s interesting to note that people have been deported from the U.S. even thought they were born in U.S. controlled territory in Panama.   A 1937 law enacted by Congress declared that anyone born in the Canal Zone after 1904 was a U.S. citizen.  However, John McCain was born in 1936.  In other words, the law conferred citizenship onto him when he was one year old.  Former Solicitor General Ted Olsen, whose firm represented Mr. McCain, claimed that the law did not establish new rules, but rather clarified what Congress had intended for years.  Citizenship also arose in the 1964 presidential campaign when Senator Barry Goldwater ran.  He was born in Arizona in 1909, while it was still a territory of the U.S., not having become a state until 1912.

So, has our Supreme Court ruled on the meaning of a natural-born citizen?  No.  Trump uses this fact to argue that Cruz’ eligibility is therefore unsettled.  Cruz defends his eligibility by arguing that he was a U.S. citizen simply by being born to a mother who was a U.S. citizen.  Although this may not follow an originalist interpretation of a “natural-born citizen” as intended by the framers, the Naturalization Act of 1790 later declared that children born abroad to American citizens were also to be considered natural-born citizens provided that their fathers were American residents.  Since then, however, the concept of natural-born citizenship continues to stir debate. Harvard law professor Laurence Tribe doubts whether Ted Cruz is a natural-born citizen according to the original words of the Constitution. Ironically, Tribe believes “the kind of judge Cruz says he admires and would appoint to the supreme court is an ‘originalist’ who claims to be bound by the historical meaning of the constitution’s terms at the time of their adoption,” and such a justice would rule against Cruz in this matter. Cruz wouldn’t be eligible because the legal principles that prevailed in the 1780s and 90s required that someone be born on U.S. soil to be considered ‘natural-born’ citizen.” Cruz insists that the Constitution be interpreted in an originalist fashion. Yet, in order to be elected as President of the United States, his interpretation of natural-born citizenship must follow that of a “living” Constitution, or one whose interpretation evolves somewhat with the changing needs of society.  Professor Tribe taught Ted Cruz at Harvard Law School.  More important than the debate over his citizenship status is his convenient flexibility with a previously rigid view of constitutional interpretation.  Professor Tribe states in the Boston Globe, “When Cruz was my constitutional law student at Harvard, he aced the course after making a big point of opposing my views in class — arguing stridently for sticking with the “original meaning” against the idea of a more elastic “living Constitution” whenever such ideas came up. I enjoyed jousting with him, but Ted never convinced me — nor did I convince him.  At least he was consistent in those days. Now, he seems to be a fair weather originalist, abandoning that method’s narrow constraints when it suits his ambition.”

Tonight, the Republicans will debate on stage in South Carolina.  Cruz will almost certainly address this nagging concern.  However, the moderator should use this opportunity to explore the candidates’ views on constitutional interpretation.  At least for now, Ted Cruz appears to suggest that we must view the Constitution as James Madison did, unless that doesn’t fit with his personal matters, and then we should disregard the founders until further notice.

Will the Supreme Court address this issue?  What do you think?

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