More scholars weigh in on whether Ted Cruz is a 'natural born' citizen

|The Volokh Conspiracy |

More constitutional law scholars are weighing in on the question of Ted Cruz's eligibility to be elected president, and most seem to concur with the conclusion that, under the best reading of the phrase "natural born citizen," Ted Cruz is eligible to be elected President of the United States.

On CNN.com, Yale law professor Akhil Reed Amar, arguably the nation's most prominent liberal originalist scholar, argues that Cruz is a "natural born citizen," while also stressing that this is a question for the political process, and not the courts. He writes:

From the founding to the present, Congress has enacted laws specifying that certain categories of foreign-born persons are citizens at birth. The earliest statute, passed in 1790, explicitly called certain foreign-born children of U.S. citizens "natural born citizens." It did not say they should be treated "as if" they were "natural born citizens." It said they were in law deemed and declared to be "natural born citizens." Congressional laws have changed over the years, but this 1790 law makes clear that from the beginning, Congress by law has the power to define the outer boundaries of birth-citizenship by conferring citizenship at birth to various persons born outside the United States.

And here is the key point: The statute on the books on the day Cruz was born made him a citizen on that day. . . .

Note that the right question to ask is not: What were the natural-born statutory rules in 1788 or 1790? The right question is: What are the natural-born statutory rules on the day a given presidential candidate was born? These statutory rules have changed over the years, and Article II builds these future changes into its elegant language.

Amar's colleague Jack Balkin believes the question could properly end up in court should state officials refuse to place Cruz on the ballot, but tentatively concludes Cruz is a "natural born citizen." At Balkinization, he writes:

My own view- admittedly preliminary- is that "natural born citizen" is a legal term of art. It comes from English common law, but it is subject to common law evolution, and therefore it was not fixed for all time in 1788. The best reading of the Eligibility Clause is that "natural born citizen" refers to persons who automatically become citizens at the moment of their birth. But Congress has the power to change (prospectively) who becomes a citizen at birth. If so, then Congress can partially but not completely alter who is a natural born citizen for purposes of Article II.

Harvard law professor Cass Sunstein, not much of an originalist himself, finds it to be a close question, but also reaches the same bottom line.

Under a narrow interpretation, natural born means that you were born within the territorial boundaries of the United States. Under an alternative and broader interpretation, it means that you were a citizen at birth, and did not have to undergo a naturalization process.

The text of the Constitution doesn't exclude either interpretation. The word "natural" might be taken to require birth in the U.S.; in the 18th century, natural was often opposed to "provided by statute"—suggesting that to serve as president, you must have been born in the country, rather than being recognized as a citizen through an act of Congress. But a natural-born citizen might be someone who just is a citizen at the moment of birth, as Cruz plainly was (through the citizenship of his mother). . . .

On the merits, I agree with Cruz: The Naturalization Act of 1790 counts in his favor, and because he was a U.S. citizen at birth under U.S. law, the better view is that he is natural born. But University of San Diego constitutional specialist Michael Ramsey, a former law clerk to Justice Antonin Scalia, put it well: "It's a mystery to me why anyone thinks it's an easy question."

The Cato Institute's Ilya Shapiro also agrees Cruz is eligible, and made the case in 2013.

Another originalist, Andrew Hyman, also makes the case for a more expansive understanding of the phrase "natural born."

Virtually no one disputes that Cruz is a "born citizen," and the only issue here is what "natural" means. The English lexicographer Samuel Johnson wrote in 1756 that the word "natural" means "native," and the word "native" in turn means either an "inhabitant" or an "offspring." So a natural born citizen is someone who was born a citizen by virtue of being an inhabitant of the United States, or (like Cruz) by virtue of being an offspring, just as Coke and Blackstone said. I don't know if Ted Cruz is the best candidate, but certainly he is a natural born citizen, in my opinion.

Hyman and Michael Ramsey have additional thoughts on the matter, with a focus on Laurence Tribe's analysis.