This is what I wrote:
My own view is that pre-1789 English/British statutes are no help at all in understanding what the Framers meant by Natural Born Citizen. None. And for the reasons I explain below, they cannot be any help.
Because the Crown-in-Parliament had the most plenary authority in reassigning rights and duties, any statute which naturalized foreigners at birth by granting them the same rights as a natural born subjects (whatever that might have meant) was, in effect, making them identical for all legal purposes to natural born subjects. Parliament never had any reason to distinguish in any meaningful way whether it was expanding the meaning or scope of the term (natural born subject) or if it was just expanding the group of people with the rights & duties of natural born subjects. Absent a written Constitution, such a distinction would be without effect or purpose.
The question is what the term meant to the Framers and ratifiers circa 1787. It is possible that it was understood by them as limited to those born in the U.S. (or the colonies or the independent states prior to 1783 when the Articles came into force, or in the U.S. post-1783). (This assumes that if born pre-1776, that they gave up--actively or impliedly--British nationality.) That limited meaning--suggesting that natural born citizenship is coextensive with place of birth--is possible. But the term may have been understood as more dynamic -- as including those born “here” and also including any others as defined by the lawmaking authority to be within the allegiance of the United States. That is “natural born citizen” was elastic as long as the person was a citizen at birth (under the Constitution or by statute) or could claim citizenship at birth retroactively upon reaching adult status. Some people will think the latter view odd, but that is because they wrongly believe that every term or phrase in the Constitution had to have a fixed meaning (in the sense that its operative scope was not subject to statutory controls). I happen to think some terms were intended to act as floors, ceilings, or defaults--leaving the exact content of the term flexible within limits.
So where does that leave us and Cruz? Because the historical precedents are not helpful (on this particular issue), ties go to the runner, i.e., the candidate & voter. It is a well-settled canon of construction—the democracy canon—that statutory and constitutional language limiting eligibility to office is interpreted narrowly. As Corpus Juris Secundum explains:
Statutes limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office in order that the public may have the benefit of choice from all those who are in fact and in law qualified. Ambiguities should be resolved in favor of eligibility to office, and constitutional and statutory provisions which restrict the right to hold public office should be strictly construed against ineligibility.
67 C.J.S. Officers and Public Employees: Construction and operation of constitutional and statutory provisions, generally § 23 (2015) (footnotes omitted)
Senator Cruz should be allowed on the ballot, and if he prevails on election day, his electors should vote for him, and Congress should count those electoral votes cast for him, and he should take the oath of office, and then proceed to execute his duties.
ADDENDUM: Professor Rick Hasen's work on the democracy canon in the Stanford Law Review is here. See Richard L. Hasen, The Democracy Canon, 62 Stan. L. Rev. 69 (2009) (coining the phrase: the democracy canon). Compare Richard L. Hasen, The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell L. Rev. 1173, 1173 (2010) (“Though the name ‘Democracy Canon’ is new, the Canon itself has a long and distinguished pedigree.”), with Christopher S. Elmendorf, Refining the Democracy Canon, 95 Cornell L. Rev. 1051, 1056–63 (2010) (discussing the costs of the democracy canon).
ADDENDUM #2: Richard L. Hasen, Ted Cruz is Fit for Office, At Least Under the Constitution, Nat. L.J., Jan. 25, 2016, http://tinyurl.com/h57ae5r, http://tinyurl.com/zkfoahd (citing Tillman post on The Originalism Blog).
Twitter: https://twitter.com/SethBTillman ( @SethBTillman )
PS: Welcome Instapundit and Chicago Boyz readers. Have a look around The New Reform Club.
My prior post is here: Seth Barrett Tillman, Miscellaneous [Faux] Americana (Part II) -- John Merryman: Time Traveller, The New Reform Club (Jan. 14, 2016, 3:33 AM)