Bench Memos

Ted Cruz, Originalism, and the “Natural Born Citizen” Requirement

In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born in 1936 in the Panama Canal Zone to parents who were American citizens, was a “natural born Citizen” ratified my point, as virtually all commentators purported to undertake an originalist inquiry.

I hadn’t seen any reason to comment on the left-wing “birther” attacks on Senator Ted Cruz’s eligibility to be president.  Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.

As this Congressional Research Service report sums it up (p. 25; see also pp. 16-21), the “overwhelming evidence of historical intent, general understandings [in 18th-century America], and common law principles underlying American jurisprudence thus indicate[s] that the most reasonable interpretation of ‘natural born’ citizens would include those who are considered U.S. citizens ‘at birth’ or ‘by birth,’ … under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent.” In other words, there is strong originalist material to support the semantic signal that “natural born Citizen” identifies someone who is a citizen by virtue of the circumstances of his birth—as distinguished from someone who is naturalized later in life as a citizen. (In McCain’s case, the dispute turned on whether he was indeed an American citizen by virtue of his birth—or was instead naturalized a citizen under a law enacted when he was eleven months old. For more, see law professor Gabriel Chin’s lengthy article making the case against McCain.)

To my surprise, the New Republic’s Noam Scheiber tries to argue that Cruz’s embrace of constitutional originalism somehow means that Cruz can’t determine that he is a “natural born Citizen.” But the only evidence that Scheiber offers for this position is the assertion (which Scheiber mischaracterizes as a concession) by a non-originalist law professor in an MSNBC interview that the proposition that a person is a “natural born Citizen” if he is a citizen by virtue of his birth “isn’t really clear cut if you limit yourself to the actual wording of the Constitution” (that’s Scheiber’s paraphrase) but instead depends on “how our understandings have evolved over time.” Scheiber both overlooks the powerful originalist evidence in support of Cruz’s status as a “natural born Citizen” and misunderstands how originalist methodology operates. (In public-meaning originalism, you don’t “limit yourself to the actual wording of the Constitution,” and you don’t find yourself lost simply because the Constitution “never defines what ‘natural born’ means.” You instead look to the public meaning of the term at the time it was adopted.)

My point here isn’t to contend that the originalist evidence points entirely in one direction. As law professor Michael Ramsey observes in a post that I’ve run across while finalizing this post (a post that also takes issue with Scheiber), there are originalist scholars who don’t “find the argument entirely conclusive.” But Scheiber’s piece is a cheap whack at Cruz as well as a cheap whack at originalism.

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