Natural Born

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Natural Born

By de Andréa

Opinion Editorialist for  
‘THE BOTTOM LINE’:  

Published January 12, 2016

A constitutional LAW PROF TAKES a SHOT AT CRUZ’s eligibility.

A constitutional law professor at Fordham University says U.S. Sen. Ted Cruz’s “natural-born citizen” claim only works if he ironically adopts a wishy washy interpretation of the U.S. Constitution favored by liberal progressives.

Thomas Lee of Fordham Law School wrote an op-ed for the Los Angeles Times on Sunday saying the Texas Republican must use a progressive “living fluid Constitutional” theory to convince voters he is legally eligible to be commander in chief.

But… Cruz considers himself to be…well…a constitutional originalist.

Lee said there are two fundamental principles an originalist must use to determine whether or not a person is a natural-born citizen:

U.S. Jus soli, - the law of soil: A child was a citizen of the sovereign who ruled the land where he or she was born.

Or…

Jus sanguinis, - the law of blood: A child’s citizenship was determined by the parents’ allegiance, regardless of place of birth. The law of blood would have applied only to the father’s place of birth in a 1788 interpretation.

Is Ted Cruz a 'natural born Citizen'? Not if you're a constitutional originalist.

Article II of the Constitution states: “No Person except a natural born Citizen . . . shall be eligible to the Office of President.” Donald Trump thinks Sen. Ted Cruz is not a natural born Citizen and that he is therefore constitutionally ineligible to be president. Is Trump right? Cruz was born in 1970 in Calgary, Canada, to a U.S. citizen mother and a Cuban citizen father. As to his Article II status, it's all in how you read the Constitution. 

There are three leading theories of how to interpret the Constitution today. One is textualism: the Constitution means what its words say. The historical context of the words is important when a modern plain meaning is not self-evident. A second theory, adopted by many liberals, relies on a “living Constitution”: the Constitution means what is most consistent with fundamental constitutional values as applied to present circumstances, in other words, whatever one wants it to mean. The third theory, championed by many leading conservatives, is originalism: The Constitution means what ordinary people would have understood it to mean at the time it was ratified, which is in 1788. 

 
To an originalist, a “natural born Citizen” is a person who is a citizen of the United States under “natural” principles of law in 1788. Two such principles were then in play in the U.S. Jus soli — the law of soil — was the principle that a child was subject or citizen of the sovereign who ruled the land or seas on which the child was born. Jus soli was viewed as a part of the common law of England, which was adopted by the American states. Jus sanguinis — the law of blood — held that a child's citizenship flowed from the parents' allegiance, regardless of place of birth. This principle was prevalent in continental Europe, and in England it was the basis for an exception to jus soli for children born there to foreign ambassadors. 

The principle of jus sanguinis in 1788 applied to patrilineal descent only: A person born in a foreign country was viewed as a “natural born Citizen” of his or her father's country. However odious it seems today, a child born of a woman whose citizenship was different from her husband's — much rarer then than today — could not be a “natural born Citizen” of the mother's country. That idea wasn't even considered until 1844 in Victorian England.

The upshot is that to an originalist, someone like Cruz — born in a foreign country (and therefore not a natural born citizen of the United States by jus soli) and to a Cuban citizen father (and therefore not a natural born citizen of the United States by jus sanguinis ) — is not eligible to be president. 

The professor said that only by allowing modern cultural norms to influence his reading of the Constitution, as a so-called “living constitutionalist” would do, can Cruz deflect “birther”-type attacks on his presidential eligibility.

Cruz’s mother, Eleanor Darragh, was born in the state of Delaware on Nov. 23, 1934. His father, Rafael, was born in Cuba. Cruz himself was born in Calgary, Canada, on Dec. 22, 1970, but renounced his dual citizenship with Canada in 2014.

THE BOTTOM LINE: If Ted Cruz is eligible to be president, then Obama if he was really born in Kenya rather that Hawaii would be also eligible.  Obamas Mother was American born.  But if Obama was born in Kenya he would not be eligible because his Father was Kenyan, at that time a British subject. This is what all the birther controversy was about. Now Cruz finds himself in the same messy quagmire.

You know what they say? What is good for the goose is good for the gander.

This is one time I think the Supreme Court should make an opinion and clear this up once and for all…  

Thanks for listening - de Andréa

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