The Controversy over Ted Cruz’s Eligibility for President and the Vicissitudes of Constitutional Law
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Whatever you may think about his politics or personality, Donald Trump has injected an interesting debate into the election year discourse. Although it may have been a mere distraction tactic, Trump’s questioning whether presidential candidate Senator Ted Cruz is constitutionally eligible to serve as President has generated countless headlines in the news media and has prompted the country’s foremost legal scholars to enter the fray. And, as is often the case, the only consensus appears to be that the answer isn’t clear cut. Why that is reveals a telling feature of Constitutional law.
First, background: Ted Cruz was born in Canada in 1970. His father was a Cuban-born, Canadian citizen and his mother was an American-born U.S. citizen. He held citizenship from both nations until he voluntarily renounced his Canadian citizenship in 2014.
According to Article II, Section 1, Clause 5 of the Constitution, among the requirements to be eligible to serve as President is that one must be a “natural born citizen.” The phrase sounds simple enough, but what it actually means is anything but.
On one side you have those who argue that, if the word “natural” is to have any meaning at all, the phrase must mean more than merely someone who is a citizen at birth. Otherwise, why not just say “born citizen”? Could the founders have been so carelessly verbose?
Evidence to support this view comes from the founders’ purported own understanding of the word “natural.” At the time it meant something not created by statute—i.e., not a law enacted by Congress (or, in pre-revolutionary times, the British Parliament)—as in “natural rights,” which were part of the judge-made common law stretching back through the history of England to the Magna Carta and incorporated into early American law.
At common law, “natural born” meant born within the nation’s sovereign territory. The only exception was for those born to public officials serving the nation in a foreign land—for example, the child of a diplomat serving in France. So, the argument goes, by including the word “natural” in “natural born citizen” the Founders meant that only those born within the sovereign territory of the United States or to public officials serving abroad could become President. Under this theory, then, Ted Cruz is ineligible.
On the other side you have those who argue that, because the Constitution gives Congress the authority to determine the requirements of citizenship (Article I, Section 8), a “natural born citizen” is whatever Congress says it is at any given time.
In 1970, when Cruz was born, section 301 of the Immigration and Nationality Act, which is still in effect today, provided that “a person born outside the geographical limits of the United States. . . of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States . . . for . . . not less than five years, at least two of which were after attaining the age of fourteen years” is a citizen of the United States. Under this theory, then, Ted Cruz could be the next Commander in Chief – if he gets elected, of course.
Brilliant legal minds are scattered on both sides of the debate. Harvard law professors disagree with each other while two former solicitors general – one appointed by George W. Bush, the other by Barack Obama – completely agree with one another. It’s quite a mess. But what it tells us is that the essence of the law, and Constitutional law in particular, is debate itself.
It is a debate the Supreme Court will enter only if Senator Cruz is threatened with government action against him because of the issue—for example, if a state official, believing Cruz to be ineligible on account of his birthplace, refuses to put Cruz’s name on a ballot. One recent lawsuit filed by a retired Texas federal prosecutor, suing on behalf of all registered voters, will almost certainly be dismissed for lack of standing. Until the Supreme Court decides the issue, it will continue to be a debate more academic than practical.
Regardless, the debate is important because it reveals the nebulous nature of Constitutional law and the enormous power of the Supreme Court—deciding the meaning of words written hundreds of years ago to determine who may and may not lead this country.
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