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Monday, January 18, 2016

Is Senator Ted Cruz a “Natural Born Citizen”? Yes [WITH ADDENDUM]

I posted on this subject at The Originalism Blog. Here is a [link]. The Originalism Blog is one of the very best law blogs on the internet. 

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,, (citing Tillman post on The Originalism Blog).


Twitter:  ( @SethBTillman )

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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)


Tim Kowal said...

Not to mention the clause is an anachronism -- a slur often addressed to the whole of the Constitution, but which seems accurate in this case. The clause was likely an attempt to protect the nascent nation from foreign influence, but as the nation has aged and access to information has increased, the need to resort to a lawsuit is vanishingly unlikely.

For example, imagine if Canada were to demand a president-elect Cruz's allegiance under 19th century law of nations (assuming it is the same as 18th century, which I found in short supply, and further assuming it were still in effect):

"The rule which governed prior to the passage of this act is found in Warren's case, 12 Op. Atty. Genls.: “It is well established English law that a native born subject of Great Britain is not capable of throwing off his allegiance.”

. . . .

"Lord Grenville in his despatch to Secretary King, March 27, 1797, declares, “No British subject can by such form of renunciation as that which is prescribed in the American law of naturalization divest himself of his allegiance to his sovereign. Such a declaration of renunciation by any of the king's subjects, would instead of operating as a protection to them, be considered an act highly criminal on their part.” "

Prentiss Webster, A Treatise on the Law of Citizenship in the United States: Treated Historically (Bender 1891) at 63, 70-71.

And further, being born to the subject of a nation made one also subject to the requirements of that nation's military, even while enjoying all the privileges and immunities of one's nation of birth:

"“The fact that Alfred Bosdet was born [to German parents] in England confers on him according to the law of this country [England] the character of an English subject and there arises or may arise in these cases a conflict of jurisdiction.”

"But as the law of England also considers the son of a native subject wherever he is born as an English citizen the English government cannot fairly complain of the law of Hamburg which is in this respect the same nor can it interfere with the execution of that law within the town of Hamburg. You may accordingly present to the authorities of Hamburg that Alfred Bosdet has become an English subject and ask as a matter of comity that his name may be therefore taken off the military list. This cannot be insisted on as a matter of right.

Id. at 58-59.

Could Cruz be put in Bosdet's predicament?

And further:

"This rule was laid down at an early date in the state of Massachusetts as follows: “This claim of the commonwealth to the allegiance of all persons born within its territory may subject some persons, who, adhering to their former sovereign, and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when the opposing sovereigns claim their allegiance. But the inconvenience cannot alter the law of the land. Their situation is not different in law, whatever may be their equitable claims, from the situation of these citizens of the commonwealth who may be naturalized in the dominion of a foreign prince. The duties of these persons arising from their allegiance to the country of their birth, remain unchanged and unimpaired by their foreign naturalization. For by the common law no subject can expatriate himself.” Ainslie vs. Martin, 6 Mass. Rpts."

But with that said, tie-goes-to-the-runner seems a fair and sensible rule given the ease of modern travel and fluidity of naturalization laws. Indeed, Ted Cruz is running for all the world to see: if Canada wished to lay claim to its native son, it is on notice to bring whatever legal arguments it might have (and I repeat my ignorance of the current state of play of international law in this respect). But if it waits until after he is elected commander-in-chief, all claims are waived. And if Canada has no claim, surely no U.S. citizen does.

Unknown said...

It's quite simple, really. If your citizenship depends on a statute, then you are NOT natural born. If a statute is what you must use, then you are NOT eligible to hold the Office of President.

Simple wins out most of the time.

Anonymous said...

The clause in the Constitution can't mean to that the office of President was restricted to those who were guaranteed citizenship under the Constitution itself, rather than by statute, because at the time the clause was put in the Constitution there *were* no people guaranteed citizenship by the Constitution itself; the guarantee of citizenship to those born here is in the Fourteenth Amendment, not the original text of the Constitution. The original text of the Constitution states that Congress has the power to enact a uniform law of naturalization and does not otherwise prescribe citizenship or naturalization.

effinayright said...

@Timothy A. Jumonville: No, it's not quite simple, really, to offer naked assertions without backing them up with facts.

The courts have always granted Congress plenary power to make their own "Uniform Rules of Naturalization", including the power to decide which people need NOT be naturalized.

And, of course, "The original United States Naturalization Law of March 26, 1790 (1 Stat. 103) provided the first rules to be followed by the United States in the granting of national citizenship. This law limited naturalization to immigrants who were free white persons of good character. It thus excluded American Indians, indentured servants, slaves, free blacks, and Asians. It also provided for citizenship for the children of U.S. citizens born abroad, but specified that the right of citizenship did "not descend to persons whose fathers have never been resident in the United States." It specifies that such children "shall be considered as natural born citizens," the only US statute ever to use the term.[1][2]" --wikipedia.

Would you like to argue that Congress did not have the power to declare ANY person born abroad a "natural born citizen"? Because they never have. Instead they went in the other direction, giving a broad meaning to the term "NBC" by following the British Common Law doctrine of "jus sanguinis".

Would you like to offer counter evidence?

Unknown said...

The 1790 and 1795 statutes, also passed by the founders, already clarify what natural born means. The 1790 law defined somebody born abroad, ot citizens, as natural born: thus establishing 2 originalist precedents:
1. A citizen at birth, is natural born. (subsequent US law has never defined any type of citizen at birth that was also defined in law as NOT natural born, they do not exist). So basically any born citizen is natural born.
2. US laws can define who is a citizen at birth, thus who is natural born, and congress can change those laws, so there is no meaning for natural born citizen that is frozen in stone, it is always subject to changes by law.

The 1795 law also established 2 principles:
1. The only type of citizen who is not natural born is one who is not born a citizen, a naturalized citizen. (some birthers try and claim that any citizen who is not born to 2 Us parents, on US soil, is somehow naturalized, they sometimes use the word statute, there is zero support in US law for this, they basically pulled that provision out of fairyland)
2. Congress can also revise the laws for who becomes a naturalized citizen, that is also subject to law.

Since those 2 clear precedents US law has added to and clarified who can be born a citizen, and thus natural born, to now include any 1 of the 2 following cases:
1. Have 1 US citizen parent (either mother or father), regardless of birthplace.
2. born in US, regardless of parents.

The birthers have claimed that extra constitutional writings, never made law, they claim somehow establish an original constitutional intent, that overides the contemporary 1790-1795 laws, and any subsequent law. That is totally bogus. Writings not enshrined in law mean nothing unless the law, eapecially contemporary law, is totally silent on the subject, but any US law overrides any extra constitutional writing, especially if that law is passed near the time of the original constitutional term is created.