Bush & Obama Solicitor Generals Claim Ted Cruz is “Natural Born Citizen”

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Published on: March 25, 2015

Some of the earliest comments I received on my column of yesterday on Ted Cruz’s declaration as a presidential candidate were to the effect that Cruz, born in Canada to an American citizen mother, is not eligible for the office of president because he doesn’t meet the constitutional criterion that a president must be a “natural born citizen.”

The Constitution, American law since the founding, bright legal minds, and even some far-left low-information media outlets all beg to differ.

For instance, in a bipartisan piece published by the Harvard Law Review, Paul Clement, once solicitor general for President George W. Bush, and Neal Katyal, once acting solicitor general for President Obama, wrote the following:

“All the sources routinely used to interpret the Constitution confirm that the phrase ‘natural born Citizen’ has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.”

No one disputes the fact that Cruz was born to a woman who was an American citizen. In seeking to determine whether that qualifies him as a natural born citizen, Katyal and Clement remind us that the two sources the Supreme Court has used to reach an understanding of the Framers’ intent are British common law at the time of the Founding and the laws passed by the First Congress, many of whose members were also framers of the Constitution.

With regard to British common law, which was enormously influential in developing American jurisprudence: “As to the British practice, laws in force in the 1700s recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used ‘natural born’ to encompass such children.”

With regard to early enactments of Congress: “(J)ust three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were ‘natural born Citizens.’ The Naturalization Act of 1790…provided 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: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States…'”

(Congress soon eliminated any differential treatment between citizen mothers and fathers, which means that since that change was made “children born abroad of a citizen parent were citizens from the moment of birth, and thus are ‘natural born Citizens.'”)

This 1790 law is of particular significance since eight of the 11 members of the committee that proposed the natural born eligibility requirement at the constitutional convention were also members of the First Congress and none raised a peep of protest.

Cruz would be a natural born citizen even under the 1790 law since his father moved to the United States in 1957. Specifically with regard to Cruz, Clement and Katyal write, “Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a ‘natural born Citizen’ within the meaning of the Constitution.”

Barry Goldwater was born to American citizen parents outside the official United States, since he was born in Arizona while it was still a territory. Mitt Romney’s father, George, who campaigned for the presidency in the 1960s, was born in Mexico to American citizen parents, and John McCain was born in the Panama Canal zone, likewise to American citizen parents. In none of these cases was the matter of geography an impediment to their presidential ambitions.

Even the uber-left Washington Post posted the following yesterday: “Cruz’s mother was a U.S. citizen when he was born, and current U.S. law extends citizenship to anyone born to a U.S. citizen, regardless of where the birth takes place. The question is whether citizenship is the same thing as being a ‘natural-born citizen.’ Legal scholars generally agree that Cruz meets that requirement.”

The Atlantic, NPR, Vox, The National Journal, and Harvard legal scholar Alan Dershowitz – reliably left-leaning voices one and all – agree that Ted Cruz is indeed eligible to run for the highest office in the land.

So it’s time to put that issue to bed, and start evaluating candidates based on their fidelity to the principles contained in the rest of the Constitution. On that score, Ted Cruz is not only eligible to run, but may be the best of the lot.

(Unless otherwise noted, the opinions expressed are the author’s and do not necessarily reflect the views of the American Family Association or American Family Radio.)

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