Cruz Withdrawal Postpones “Natural Born” Issue

This article first appeared in the Forth Worth Star Telegram.

A silver lining to the withdrawal of Sen. Ted Cruz, R-Texas, from the presidential race is that we will be spared a battle over whether he met the Constitution’s requirement the president be a “natural born citizen.”

The evidence is not all one way, but on balance there is a good case Cruz did not meet the constitutional requirement.

As a general rule, the Constitution uses legal terms such as “natural born” in their 18th-century English legal sense. Under the law of the time, a foreign-born person did not qualify unless he had a citizen father not then engaged in treasonous or felonious activities.

Cruz was born in Canada of an American mother and a Cuban father.

Cruz, who in other respects is a strict constitutionalist, blew off the question, claiming it already had been decided in his favor.

This was demonstrably untrue. Although Cruz was born a citizen by virtue of federal law, federal law cannot, of course, alter constitutional definitions.

As Harvard law professor Lawrence Tribe has pointed out, the Supreme Court has never determined authoritatively the constitutional definition of “natural born.”

Several conservative commentators wishing to back up Cruz’s claim pointed to a 1790 congressional statute that can be read as recognizing as “natural born” children born abroad of citizen mothers.

But the statute was problematic for several reasons: (1) It can be read in other ways, (2) prevailing contemporaneous law rendered the Cruz-favored reading unlikely, (3) the statute probably had purposes unrelated to the presidency, and (4) it was soon repealed.

Liberal commentators appeared to be split on the issue.

Some upheld Cruz’s position, while others were not willing to be seen applying a doctrine as politically incorrect as patrilineality — the doctrine that one’s citizenship status comes through the status of a child’s father.

Some claimed founding-era law disqualified anyone not born in the U.S. Others claimed a child born abroad was “natural born” only if the citizen-parent was in active government service at the time.

Both of these positions are demonstrably false as well. Founding-era law did recognize as natural born those children born abroad whose fathers were citizens, and those fathers frequently were merchants or others not involved in government service at the time.

On top of everything else, several courts, when ruling in Cruz’s favor, cited an article authored by two former U.S. solicitors general.

The article relied heavily on a citation from 18th-century legal commentator William Blackstone.

As it happened, the authors’ report of what Blackstone had written was diametrically opposed to what Blackstone actually had said.

If the case had gone to the Supreme Court, you can bet the justices would not have been so sloppy.

Cruz’s withdrawal gives us some more time to think about the issue.

In the wider context of founding-era jurisprudence, the citizenship patrilineality rule was not particularly “sexist,” because it was balanced by matrilineal rules in certain other areas. However, these rules —matrilineal or patrilineal — make little sense today.

Perhaps a constitutional amendment is in order, recognizing as “natural born” the foreign-born child of either an American mother or American father.

This is a good illustration of why the Constitution has an amendment process.