Ted Cruz is Probably a Natural Born Citizen (alas)

Photo by Gage Skidmore, used under a Creative Commons license

A few days ago, one of my Constitutional Law students tipped me off to Harvard Law School professor Einer Elhauge’s argument that Ted Cruz is not constitutionally eligible to be the President of the United States. Mary Brigid McManamon has made a similar argument.

I wish I agreed. I can’t stand Ted Cruz, and it would be lovely to find a constitutional bar to his ever taking office. (Although, let’s be realistic: the chance of a federal court ever considering the question even if they are right is very small.) Unfortunately, while there are many, many things wrong with Ted Cruz, I can’t see my way to being convinced that his citizenship is one of them.

Some background. Article II of the Constitution says that “[n]o person except a natural born citizen… shall be eligible to the office of President.” The question is, “what does ‘natural born citizen’ mean?” Ted Cruz was a U.S. citizen from birth, even though he was born in Canada, because when he was born a statute provided that children born abroad to American mothers counted as citizens. So he was a “born” citizen, but was he a “natural” born citizen?

Elhauge seems to want to interpet the word “natural” to mean a reference to “natural rights” or “natural law,” which he assimilates to the general category of law “not created by statute.” Law “not created by statute,” according to Elhauge, included the common law tradition at the time of the founding, and that tradition only recognized birth within the territory as a source of citizenship.

That analysis is erroneous. “Natural law (or rights)” and “common law” are distinct ideas. The first means a kind of free-floating law, independent of what governments or people do, and often associated with religious faith. The latter is judge-made law inherited from the traditions and customs of the community.

Moreover, Elhauge doesn’t really offer any argument to read the word “natural” as invoking “natural law.” By contrast, it seems perfectly reasonable to me to read “natural born” as “born.” In the ordinary use of the English language, it’s hard to read the adjective “natural” as modifying anything other than the word “born.” Since there wasn’t anything that could be described as “unnatural” birth at the time, the conclusion that follows most easily is that “natural” just doesn’t do any work.

“But!,” you might argue, “we can’t just read words out of the Constitution!” To which I say “nonsense.” It’s not as if the framers of the Constitution were innocent of redundancy and surplusage. The Constitution is full of lines like “exclusive legislation in all cases whatsoever” (what does “whatsoever” add?) and “promote the progress of science and useful arts” (as opposed to the useless ones?). It’s generally agreed that “freedom of speech, or of the press” in the First Amendment doesn’t (and can’t) mean that the press have different or additional free speech rights compared to the rest of us. And every live interpretation of the Second Amendment has made a choice between paying no attention to the bit that says “well-regulated militia” or paying no attention to the bit that says “the right of the people to keep and bear arms.” We read words out of the Constitution all the time, in order to make the best sense of its provisions as a whole.

Moreover, even if you think that “natural born” is a reference to “natural law” or “natural rights,” there are two classical sources of citizenship that could be counted as “natural” in that sense: jus soli (birth in the territory) and jus sanguinis (by descent, the kind of citizenship that Ted Cruz has). Both have a long tradition in various countries, and regardless of what you think the common law was, either would have a claim to “natural law.” Just to pick two examples in the long legal tradition that informed British and American law, both the Ancient Romans and the Ancient Athenians had elements of jus sanguinis in their citizenship laws.

McManamon cites the Supreme Court case of United States v. Wong Kim Ark in support of her assimilation of the term “natural born citizen” to a common law concept of citizenship. However, that case doesn’t help her very much. Wong Kim Ark was a child of Chinese parents who had been born in the U.S., and the case was about whether he was entitled to U.S. citizenship as a result of that birth — a question that the Fourteenth Amendment answers handily and explicitly (“yes”). Moreover, the ruling does not require answering any questions about the natural born citizen clause or about the status of children of Americans born abroad. Put differently, all the Court needed to hold was birth in the territory was sufficient (not necessary) to be a citizen, and that being the child of American parents was not necessary. That’s also what the explicit text of the Fourteenth Amendment provides. Any talk about whether being the child of Americans is sufficient, or whether being born in the territory is necessary, under the common law or otherwise, is at most dicta.

McManamon makes another problematic argument. She quotes James Madison as follows: “It is an established maxim that birth is a criterion of allegiance. . . . [And] place is the most certain criterion; it is what applies in the United States.”

However, leaving aside the well-known problems with cherry-picking statements of the Founders to give content to the original meaning of the Constitution (and problems with originalism in general), if you actually go read the passage of Madison’s that she quotes, the elipsis conceals much more complexity.

In the quoted document, Madison was weighing in on the question of a Mr. Smith’s eligibity to serve in Congress. And while it’s not crystal-clear why Smith claimed to be a citizen at the time of the Declaration of Independence, it looks like his claim was based on being born in (?) South Carolina, and Madison was arguing that this was sufficient to qualify him. In other words, this is exactly the same kind of question as in Wong Kim Ark — not whether being born in the territory is necessary but whether it is sufficient.

Moreover, Madison recognized that there was a jus sanguinis category that could be described as citizenship by birth, and treated it as on a par with jus soli; although he suggested that the latter was “what applies in the United States,” he also seems to have held out the possiblity that in an appropriate case the other might be relevant. I’ve bolded the important bit, which McManamon inappropriately omitted:

It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other. Mr. Smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony.

To be sure, McManamon wrote a whole law review article on the subject; I haven’t read that, and thus can’t fairly represent her entire argument here. But based on the bits she chose to extract in an editorial, I’m pretty skeptical of the underlying analysis too.

McManamon also complains that the position I defend here would give Congress the power to determine who is a “natural born citizen” for constitutional purposes just by changing the law about who is a citizen at birth.

It’s true, my interpretation of the clause does make the meaning of “natural born citizen” depend on what Congress does. But so what? The meaning of some constitutional provisions changes depending on legislative action. Here’s the classic example: the due process clause protects “property” against being taken by the government without a trial. But Congress and the state legislatures have the power to create new categories of property, like entitlements to welfare benefits, and once they create those kinds of property, the Due Process Clause protects them. In other words, Congress and the state legislatures have the power to change what the word “property” in the Constitution means, by changing property law. Similarly, they have the power to change what “natural born citizen” means, by changing the citizenship law. That’s normal and no big deal.

Finally, you might think that the passage from Blackstone that McManamon cites settles the question. After all, Blackstone was pretty clear that a “natural born subject” is just someone born in the territory, and it’s easy to think that “natural born citizen” means the same thing. Before you leap to that conclusion, though, read this short article by Larry Solum. And then go back and look at the Blackstone again:

Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen,which binds the subject to the king, in return for that protection which the king affords the subject.
* * *
Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature.

There, Blackstone says two things that pose a problem for the “natural born citizens” = “natural born subjects” = “born in the territory” position. First, he characterizes the relationship as one of gratitude for the protection of the sovereign — which makes sense when we’re talking about post-feudal monarchs and subjects, but not when we’re talking about equal citizens. Thus, Solum’s argument that “subject” in British common law and “citizen” in the revolutionary U.S. are different ideas. Second, he suggests that the category of natural allegiance (and hence natural subjecthood, citizenship, whev) is subject to legislative amendment — just like Congress did here!

The courts won’t save us from a Ted Cruz presidency. We need to do that ourselves. At the ballot box.