[Rushtalk] Ted Cruz is not eligible to run for president: A Harvard Law professor close-reads the Constitution

Carl Spitzer lynux at keepandbeararms.com
Sat Feb 27 12:06:43 MST 2016


Ted Cruz is not eligible to run for president: A Harvard Law professor
close-reads the Constitution 

The closer you study the Constitution, the weaker Ted Cruz's case
squares with the actual meaning of "natural-born" 

Einer Elhauge 
      * 

The argument that Ted Cruz is eligible to run for president initially
looked strong, then probable but uncertain.  But closer examination
shows it is surprisingly weak.

The constitutional text provides that a president, unlike other elected
officials, must be a “natural born citizen.”  This language could not
mean anyone born a citizen or else the text would have simply stated
“born citizen.”  The word “natural” is a limiting qualifier that
indicates only some persons who are born citizens qualify.  Moreover,
when the Constitution was enacted, the word “natural” meant something
not created by statute, as with natural rights or natural law, which
instead were part of the common law.

At common law, “natural born” meant someone born within the sovereign
territory with one narrow exception.  The exception was for children of
public officials serving abroad, which does not help Cruz because his
parents were not serving the United States when he was born in Canada.
The case of John McCain was entirely different because he was born in a
U.S. territory (the Panama Canal Zone) and to U.S. parents who were
serving the U.S. military.

The argument for Cruz rests on some old statutes, namely English
statutes enacted before the U.S. Constitution and U.S. statutes enacted
just after.  But neither turns out to be persuasive on closer
examination.

The English statutes extended natural-born status to persons born abroad
whose father was any English subject, rather than only a public
official.  Some argue that the constitutional framers meant to refer to
this statutory redefinition of the term “natural born.”  But that
position contradicts the ordinary meaning that the word “natural”
indicates a non-statutory meaning.  Moreover, Prof. Mary McManamon
offers convincing evidence that the Framers meant the common law
meaning.  James Madison himself said in 1789 that the U.S. used the
place of birth rather than parentage.  In any event, Cruz’s father was
not a U.S. citizen when he was born (again unlike McCain), so these
English statutes do not help Cruz.

The U.S. statute in 1790 provided that “children of citizens of the
United States” that are born abroad “shall be considered as natural born
Citizens.”  This has been thought the strongest evidence for Cruz’s
position since so many 1790 congressmen had participated in the
Constitutional Convention.  However, this statute did not say these
children were natural-born citizens.  It instead carefully said they
“shall be considered as” natural-born citizens, suggesting that Congress
thought they were not natural-born citizens but should be treated as
such.  Indeed, there would have been no need to pass the statute if they
were already understood to be natural-born citizens.

Further, when this Act was reconsidered in a few years, Madison himself
pointed out that Congress only had constitutional authority to
naturalize aliens, not U.S. citizens, and reported a bill that amended
the statute to eliminate the words “natural born” and simply state that
“the children of citizens of the United States” born abroad “shall be
considered as citizens.”   This indicates that Madison’s view was that
children born abroad of U.S. citizens were naturally aliens, rather than
natural born citizens, and thus could be naturalized by Congressional
statute but should not be called “natural born.”  Congress adopted this
amendment in 1795.



-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://kalos.csdco.com/pipermail/rushtalk/attachments/20160227/c31cc0da/attachment.html 


More information about the Rushtalk mailing list