by Rod D. Martin
February 11, 2016
Donald Trump has made an issue of Ted Cruz’s eligibility to be President since December (or as Trump put it, on national television, since “Ted is doing better in the polls” than he was when Trump said it Cruz was “obviously” eligible back in September).
The problem? George Washington, James Madison and a host of other actual signers of the Constitution disagree.
Those opposing Ted Cruz’s eligibility tend to discuss various English writings, and speak of a “patrilineal principle” whereby they claim that children could in fact be natural born British subjects if born overseas, but only if their father (not their mother) was a subject.
Ignoring whether such an obviously sexist principle would pass muster as Constitutional today, the real issue is that the Founders themselves explicitly repudiated it.
What do I mean? Let’s look not at some learned tome by Coke or Blackstone, but at the Naturalization Act of 1790, an act of the United States Congress, the very first Congress in fact, acting while some states had not yet ratified the Constitution. It states in relevant part:
“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 . . . .” [emphasis added]
Now once again, this is legislation enacted by the First Congress, during a period in which several states hadn’t even ratified the Constitution (much less the Bill of Rights). There had been no time for anyone to “forget” what was commonly meant by “natural born citizen” when it passed.
George Washington, of course, signed it into law.
And that’s not even the most significant part. That first Congress included James Madison (“the father of the Constitution”), James Monroe (a future President, one of whose children was later born abroad and whom he presumably had no intention of disenfranchising), Judge William Patterson, Robert Morris, Rufus King, Oliver Ellsworth (one of the Constitution’s principle drafters), William Samuel Johnson, Pierce Butler, John Langdon, Roger Sherman, and Elbridge Gerry, all of whom except Monroe were delegates to the Constitutional Convention, and all but a couple of whom signed it.
Had they changed their minds in the intervening months since Philadelphia? It seems pretty unlikely: there appears to have been no controversy over their definition of “natural born citizen” at the time. Moreover, if they did, many of conservatives’ favorite originalist arguments — such as the one concerning the Establishment Clause whereby we note that the first Congress enacted a measure to print Bibles at public expense for the Northwest Territory — necessarily fail.
The Naturalization Act of 1790, which is actually the only U.S. statute ever to use the term “natural born citizen”, clearly qualifies Ted Cruz as a natural born citizen. 8 USC § 1401, the relevant current statute, doesn’t use the term, but in no way contradicts the 1790 Act.
This tells us with concrete certainty what the Founding Fathers — not a court, not a debating society, not government run amok — believed about the term. There can really be no doubt as to what the Founders thought: they codified it.
I am deeply grateful for the originalist stand of my many conservative friends who’ve been tripped up by all this. In my many conversations with them, I have yet to meet a single one who realizes that looking to Coke and Blackstone, or discerning the tea leaves of what some pre-Revolutionary British statute might mean, is completely unnecessary. (Unfortunately, I’ve met more than a few Trump supporters who pretend their position is based on “originalism” but toss it the instant they realize the Founders were clear.)
Ted Cruz is elligible. So were John McCain, George Romney, Barry Goldwater and yes, Donald Trump (whom Cruz hilariously pointed out would be an anchor baby by his own interpretation). The law couldn’t be clearer. But more than that, the Founding Fathers couldn’t have been clearer.
So if Original Intent is something you care about — as opposed to merely pretending to care about — this is indeed a slam dunk.
UPDATE: Some who’ve corresponded with me since the posting of this article have suggested that the alternative to my view is that “natural born citizen” means literally and only “born here.” However, this is plainly false. British statute held that the children of British fathers born overseas were themselves natural born British subjects. The United States inherited that law when it became independent.
There are two reasons this is important. First, as you can see from the statute cited, is was the Founders’ plain intent to repeal that so-called “patrilineal principal”: not only did they change “fathers” to “citizens”, but they also made clear that the child of a citizen mother whose non-citizen father had been resident here for the prescribed time was itself a natural born citizen.
Again, the law prior to the Revolution was that an American father’s child born abroad was natural born; the Founders expressly extended that to American mothers. (And yes, I’m sure some of the angry comments I’m getting are due to the fact that this skewers the Birther argument against Barack Obama, regardless of his place of birth.)
Second, even if the patrilineal principle had not been rejected by the Founders — and remember, my argument is not about the 1790 Act per se, but about the intent of the Founders when they drafted the Constitution, of which the 1790 Act is compelling evidence — the states had and have the power at any time to amend the Constitution. And in fact they did: the Equal Protection Clause of the 14th Amendment would necessarily and plainly overturn the patrilineal principle even if it had still existed.
Again, this is a slam dunk.
UPDATE 2: Someone pointed out to me this great article buttressing my point, published in the Harvard Law Review by two former U.S. Solicitors General (for those of you from Rio Linda, that is the position responsible for arguing all of the federal government’s cases before the Supreme Court).