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calimacLaw profs Lawrence Tribe and Mary Brigid McManamon have convinced me.
By the intended meaning of the U.S. Constitution's requirement for a "natural born Citizen", Ted Cruz is not legally eligible to be President.
McManamon explains the distinction. A natural-born citizen is one born in U.S. territory. (Frustratingly, McManamon doesn't clarify whether this is restricted to the metropolitan U.S. or includes other territory under U.S. control, which would cover Barry Goldwater and John McCain.) Cruz wasn't. He was born in a foreign country. End of story.
But his mother was a U.S. citizen, you object. Here's where McManamon gets ingenious. His mother's status made Cruz a naturalized citizen: naturalized automatically, at birth, instead of having to go through a naturalization procedure later on. But he's not a natural-born citizen.
That's what the Constitution was written to intend. Tribe puts the argument in context. If put to the Court today, the decision would probably go for the more inclusive meaning. But Cruz wants justices who stick to the original intent. Well, then, he can't have them, because they'd have to rule he was ineligible to appoint them.
I have no doubt, however, that if Cruz is nominated and then elected, the question will be just brushed aside.
By the intended meaning of the U.S. Constitution's requirement for a "natural born Citizen", Ted Cruz is not legally eligible to be President.
McManamon explains the distinction. A natural-born citizen is one born in U.S. territory. (Frustratingly, McManamon doesn't clarify whether this is restricted to the metropolitan U.S. or includes other territory under U.S. control, which would cover Barry Goldwater and John McCain.) Cruz wasn't. He was born in a foreign country. End of story.
But his mother was a U.S. citizen, you object. Here's where McManamon gets ingenious. His mother's status made Cruz a naturalized citizen: naturalized automatically, at birth, instead of having to go through a naturalization procedure later on. But he's not a natural-born citizen.
That's what the Constitution was written to intend. Tribe puts the argument in context. If put to the Court today, the decision would probably go for the more inclusive meaning. But Cruz wants justices who stick to the original intent. Well, then, he can't have them, because they'd have to rule he was ineligible to appoint them.
I have no doubt, however, that if Cruz is nominated and then elected, the question will be just brushed aside.
no subject
Date: 2016-01-14 01:34 am (UTC)As for McManamon, I take her citation of her own 2015 paper simply to be for those who want to read the expanded version of the same argument she is making in this Washington Post column. In that paper, she quotes much more extensively from Blackstone and other British and American legal authorities in her attempt to determine what the phrase "natural born" meant when it was put into the Constitution.
Your own citation of Blackstone doesn't undermine McManamon's argument. When Blackstone discusses "the children of the [English] king's ambassadors born abroad", he is clear that this is a long-standing exception to the general common law principle that one is natural born to the nation that governs one's land of birth. (Also, I think you may be misreading Blackstone here, since you appear to believe he means that children of foreign ambassadors born in England were thus English subjects. He does not.) As for his reference to the 1350 statute that allowed the foreign-born children of two English parents to, as Blackstone writes, "inherit as if born in England", well:
(1) As McManamon shows in her longer paper, while not entirely consistent, subsequent judicial interpretations of that language usually do not read it as conferring natural born citizenship--and that includes the U.S. Supreme Court, deciding in 1898 on U.S. vs. Wong Kim Ark, who wrote that the 1350 act is not "declaratory of the common law". Also, such people could inherit in England, but could be restricted from other types of citizenship, and furthermore, subsequent acts limited these rights: McManamon lists numerous examples of people born abroad to two English parents in the 16th-18th centuries who had to be naturalized by acts of Parliament (at first by paying a fee for a private act and later, as per public acts to assist families who fled overseas prior to the Restoration, by making certain oaths at Westminster within a particular time frame)--because they weren't natural born citizens.
(2) Even if James Madison, et al. understood citizens could be "natural born" as per the 1350 law, it still doesn't apply to Ted Cruz, only one of whose parents when he was born abroad was a U.S. citizen. In her Post article, McManamon had noted there were some "revolutionary" 18th century modifications (detailed in her longer paper: a 1708 act, modified in 1731, made foreign-born children of natural born fathers--but not mothers--natural born; a 1773 act extended this status to foreign-born children whose paternal grandfathers were natural born), but as she notes in the Post, the U.S. Congress in 1790, exercising its Constitutional authority to create rules of naturalization, nonetheless felt the need to make foreign-born children of natural born citizens into citizens themselves. In her longer paper, she shows that early Americans, including Madison, did not think such children were natural born: "place" rather than "parentage", she quotes Madison as saying, "is what applies in the United States".
(In response to the original post's concern about McManamon not addressing the situation of whether McCain or Goldwater were natural born, at first I though the Blackstone quote she included in her Post article addressed that: just as those "born within the dominions of the crown of England" are natural born English citizens, so also those born in U.S. territories or on U.S. military bases are natural born U.S. citizens. Unfortunately, even in her longer paper, McManamon doesn't address the first two except in passing. And Duggin and Collins muddy those waters further.)
-MTD/neb