I’m not a birther, but as the Cruz situation has evolved, as a lawyer I’ve been uncomfortable with the arguments put forth asserting that “of course” Cruz is eligible to be president. The term “natural born citizen,” used in the Constitution, but not in any immigration or naturalization statute since 1795, has to mean something different than “citizen” or “naturalized citizen,” because after the Constitution was established, it was recognized that a child born abroad to one or even two US citizen parents still needed to be naturalized before accruing all the rights of citizenship. While this is not true anymore, it shows that in the early years of this country, the only way to be a citizen at birth was to be born here.
Finally, someone has put forth a coherent and persuasive legal argument picking up the points I mention above, as well as several more. Is Ted Cruz a citizen? Yes. Was he a citizen at birth? By way of the laws enacted on the subject beginning in the 19th century, yes. Was he a “natural born citizen” for purposes of the constitutional requirement to be president? No. Thus says Widener University’s Delaware Law School constitutional law professor Mary Brigid McManamon.
Donald Trump is actually right about something: Sen. Ted Cruz (R-Tex.) is not a natural-born citizen and therefore is not eligible to be president or vice president of the United States.
The Constitution provides that “No person except a natural born Citizen . . . shall be eligible to the Office of President.” The concept of “natural born” comes from common law, and it is that law the Supreme Court has said we must turn to for the concept’s definition. On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are “such as are born within the dominions of the crown of England,” while aliens are “such as are born out of it.” The key to this division is the assumption of allegiance to one’s country of birth. The Americans who drafted the Constitution adopted this principle for the United States. James Madison, known as the “father of the Constitution,” stated, “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.”
For those of you who are gluttons for detailed legal wankery, the op-ed in the Post is based on and drawn from the author’s 2014 law review article on the subject. By the standards of law review articles, I will say that it is one of the more accessible, and understandable to a lay audience, articles I have ever read.
Full disclosure: for those who want to read the earlier article that McManamon (convincingly in my view) disagrees with, it is here. One of the things that disturbed me as this issue bubbled up was the vehemence with which so many commentators rushed to judgment - see Jonathan Adler last week here (only “folks on the fringe” question Cruz’s eligibility and “there is no question about” his eligibility). This is what happens when uncomfortable questions arise that “respectable” journalists and others don’t want to be taken seriously. Define the questioners as “out of bounds” for even asking the question and hope like hell the issue goes away.
I’ll say this - as a lawyer, I’ve won far worse legal arguments than this one. I’d be more than comfortable walking into a courtroom with McManamon’s article as my argument. I can’t promise I’d win - there would be an enormous interest in defining the problem away for many like Adler and others - but it’s a solid, well-grounded and well-reasoned argument. And I for one happen to think it’s the better argument.