Sunday, May 1, 2016

The Natural Born Citizen Requirement, Part 2: Is Senator Cruz Eligible To Be President?

As discussed in my first post on this issue, which addressed the importance of the Article II qualifications and can be found here, only a "natural born citizen" is eligible to be President. Senator Cruz was born in Canada to a mother who was a U.S. citizen and a father who was a Cuban citizen; he thus is a citizen, but not a natural born citizen as that term would have been understood and used by the Framers. From any interpretive approach, and certainly from the originalism approach Senator Cruz favors, I believe that the text, history, and legal scholarship support the conclusion that the phrase natural born citizen was intended to mean someone born on U.S. soil, or native born. (There may be exceptions for children born abroad to American diplomats or those in military service, but neither is relevant to Senator Cruz.)

As an initial matter in understanding the specific text, the phrase natural born citizen must mean something important and more than citizen because it appears only once in the Constitution -- while the word citizen or citizens is used 21 times. Words are presumed to have meaning in any legal document, and this is certainly true when it comes to the Constitution. As further support for the proposition that the phrase is significant and means a very specific type of citizen, consider this: those who were not natural born but were citizens at the time the Constitution was adopted were exempted from this requirement and eligible to be President. There was a brief time in our history when a citizen who was not natural born was qualified to be President, but those days are long gone.  

And so we turn to the next question: What did the Framers think it meant? The Framers were quite concerned about foreign influence, and in embarking on their grand experiment in republican self-government they were looking to distance the new United States as much as possible from the monarchies and politics of Europe. There was no doubt concern that Europe might seek to drag the new nation back into its sphere, perhaps by seeking to gain the highest political office. Indeed, John Jay, the first Chief Justice of the Supreme Court and one of the three authors of The Federalist Papers, suggested the phrase to George Washington in a letter during the Constitutional Convention. His goal was to ensure that a foreigner could not be commander in chief, one of the President's main functions. 

It was not a controversial addition, for James Madison’s Notes of the Convention indicate that the inclusion of the natural born qualification was accepted without debate. This lack of debate also confirms that there was no disagreement about what the phrase meant to the Framers, for surely there would have been debate had there not been a shared understanding. So what was the shared understanding? Legal history strongly supports the conclusion that it was understood to mean that the President must be native born on American soil. Sir William Blackstone, writing in his famous Commentaries on the Laws of England -- which were widely known to American lawyers, including the Framers -- devotes several pages of his treatise to the issue of citizenship. His statements about England's approach are instructive and most likely informed the thinking of the Framers. Wrote Blackstone, “[t]he first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England.. . .” This, to me, is what the phrase natural born refers to -- someone physically born here. Some have argued that the Framers would not have followed Blackstone and English common law, but that argument is entirely unpersuasive and solely designed to avoid the consequences of English common law, which essentially formed the basis for American common law. Blackstone was widely used by American lawyers at the time and for long after. Indeed, his work was a prime source by which Abraham Lincoln trained himself to be a lawyer.

Leading American legal writers of the time were firmly of the view that only those born on U.S. soil could be President. For example, St. George Tucker, a prominent and well known law professor at William & Mary, published his own version of Blackstone’s Commentaries in 1803 with annotations of American law. His writings were highly influential. As he described it, "[t]hat provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence.. . ." He made clear the view that a naturalized citizen would be entitled to all the rights of natural born citizens, except that “they are forever incapable of being chosen to the office of president of the United States.” 

Joseph Story, a famous Supreme Court Justice and Professor of Law at Harvard, wrote about the driving force behind the President being natural born in his 1833 treatise, Commentaries on the Constitution of the United States:

It is indispensable, too, that the president should be a natural born citizen of the United States; or a citizen at the adoption of the constitution, and for fourteen years before his election. This permission of a naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country.. . . But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. 
The lengths to which some have gone to try and press their own point on this topic can only be characterized as legalistic legerdemain. I noted above the disingenuous effort to ignore Blackstone. Another good example is a completely misplaced reliance on a law from 1790 that was repealed a few years later. In an effort to support the claim that Senator Cruz is natural born, much has been made of the Naturalization Act of 1790, which states that "the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens.. . .  This law, however, was repealed only a few years after it was enacted, and it provides no such support. Most importantly, it is not the law by which Senator Cruz became a citizen; indeed, the Naturalization Act of 1795 that replaced it removed the natural born language entirely:  "the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States" -- not natural born citizens.  

To recap: only natural born citizens are eligible to be President, and that means being born here. As Senator Cruz says, facts are stubborn things. And they cannot change. The reality is that Senator Cruz was not born here, the law under which he became a citizen cannot and did not make him a natural born citizen, and he simply is ineligible to be President. 

As I stated in Part 1, this is an important issue that needs to be addressed. Let me be very clear that I do not for a moment have a philosophical quarrel with the proposition, advanced a few years back regarding the then foreign born governors of California and Michigan, that the Constitution should be amended to remove the natural born qualification. Maybe it should. But I do quarrel with those who ignore the constitutionally mandated qualification or engage in selective parsing of the historical record to try and obfuscate the issue.

To paraphrase the words of the late Justice Scalia, the rule of law is a law of rules. That concept should remind us that the Constitution and its rules must be followed.