Every four years, as the presidential campaigns start kicking into high gear for the Iowa caucuses and early primaries in New Hampshire, South Carolina, and beyond, some partisans begin feeling desperate about their candidate’s prospects. We then see a flurry of half-truths, distortions of the historical record, and downright silly claims. The latest charge against Senator Ted Cruz falls into that latter category.
The charge, first pushed by Donald Trump, is that because Senator Cruz was born in Canada, he is not a natural-born citizen and therefore ineligible for the office of president. No serious constitutional scholar adheres to the view that the meaning of the “natural-born citizen” requirement contained in Article II, Section 1, Clause 5 of the Constitution applies only to people born on American soil. Nevertheless, out trots Mary Brigid McManamon, primarily a civil-procedure professor at Widener University’s Delaware Law School who also teaches constitutional law, to argue in a Washington Post article earlier this week that the natural-born citizen language in the U.S. Constitution comes from the English common law, which “is clear and unambiguous,” she claims, in holding that only persons “born within the dominions” are natural-born citizens.” Professor McManamon is simply mistaken, both about the common law and about the Constitution.
After the English civil wars of the mid 17th century and the return of a number of English subjects who had departed the realm during the wars, an Act of Parliament determined that all children who, during the period of the wars, “were born out of his majesty’s dominions, and whose fathers or mothers were natural-born subjects of this realm,” were themselves natural-born subjects. (The act was cited in the landmark 1898 Supreme Court case United States v. Wong Kim Ark that ruled that the children of non-citizen lawful permanent residents born in the United States are automatically U.S. citizens.) That position was repeated and made more comprehensive in 1708, during the reign of Queen Ann: “the Children of all natural born Subjects born out of the Ligeance of Her Majesty, Her Heirs, and Successors shall be deemed adjudged and taken to be natural born Subjects of this Kingdom to all Intents Constructions and Purposes whatsoever.” So English law is “clear and unambiguous,” but the clarity is precisely the opposite of what Professor McManamon claimed.
So let’s move on from this particular silliness, and get back to the business of choosing a president from among the broad slate of well-qualified — and fully eligible — candidates before us.
— John C. Eastman is the Henry Salvatori Professor of Law & Community Service, and former dean, at the Chapman University Fowler School of Law, and the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence.