A growing number of constitutional law scholars are arguing that Ted Cruz’s birth in Canada makes him ineligible to become U.S. president. Their argument could prove a thorn in the side of the senator, who is a zealous originalist on most constitutional questions—with what seems like a notable exception.
The issue has moved to the center of the presidential campaign, with Cruz’s rise in the polls and Donald Trump claiming that Cruz needs to prove he’s eligible to run by getting a declaratory judgment in federal court.
UPDATE: Legal challenges to Cruz’s eligibility are now underway in five states – New York, Alabama, Texas, Illinois, and Indiana.
There is some ambiguity in the question of eligibility. The Constitution sets down three requirements to assume the nation’s highest office: one must be at least 35 years old, have been a resident of the U.S. for at least 14 years (though whether those years must be consecutive or can be cumulative is a question up for debate) and must be a “natural-born citizen” of the United States. But the founders did not explicitly define “natural-born citizen,” leaving room for doubt and debate.
While Cruz has told reporters his eligibility to become president is “settled law” because his mother was an American citizen when he was born and never renounced her American citizenship while she was a Canadian resident. Many constitutional theorists agree with Cruz that it’s not really up for debate.
But it’s hardly unanimous. An increasing number of high-profile constitutional law professors, including one of Cruz’s own professors from Harvard Law School, have in recent days argued publicly that Cruz’s birth disqualifies him.
“[I]t’s all in how you read the Constitution,” wrote Thomas Lee, a professor of constitutional and international law at Fordham University, in an op-ed published in the Los Angeles Times Sunday:
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. 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, in 1788.
According to Lee, two legal theories of citizenship were popular at the time the Constitution was ratified:jus soli (Latin for “law of the land), which held that a child’s citizenship flowed from the actual, physical place of his birth, and jus sanguinis (“law of the blood”), which held that parents passed their citizenship to their children. However, Lee argues, at the time the Constitution was ratified, jus sanguinis applied only to patrilineal descent.
“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.”
Mary Brigid McManamon, a constitutional law professor at Widener University, made a similar argument in The Washington Post Tuesday. “In this election cycle, numerous pundits have declared that Cruz is eligible to be president,” she writes. “They rely on a supposed consensus among legal experts. This notion appears to emanate largely from a recent comment in the Harvard Law Review Forum by former Solicitors General Neal Katyal and Paul Clement. In trying to put the question of who is a natural-born citizen to rest, however, the authors misunderstand, misapply and ignore the relevant law.”
The law Katyal and Clement are ignoring, McManamon argues, is 18th-century English common law, which the Supreme Court has said is a necessary lens for understanding the founders’ understanding of the Constitution—a fact that Katyal, Clement and McManamon agree on. English common law was “unequivocal” on the subject, McManamon says: “Natural-born subjects had to be born in English territory.” Katyal and Clement, rather than relying on common law, turn for their interpretation to a trio of 18th-century British statutes that were “a revolutionary departure” from the common law, McManamon argues.
Now a former teacher of Cruz’s says he thinks the senator isn’t eligible to run for president. Laurence Tribe, a professor of constitutional law at Harvard who taught both Cruz and President Barack Obama, wrote about the subject in an op-ed published Monday in The Boston Globe.
“People are entitled to their own opinions about what the definition ought to be,” Tribe writes. “But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an ‘originalist,’ one who claims to be bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on U.S. soil to be a ‘natural born’ citizen. Even having two U.S. parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.”
Cruz’s Canadian birth to an American mother gives him citizenship, but his Cuban immigrant father who didn’t become a citizen until 2005 means Ted is NOT a natural–born citizen.
Tribe later called Cruz a “fair-weather originalist” on CNN, saying the senator’s philosophy is “antiquated…but it turns out Ted Cruz drops that when it doesn’t serve his purpose.”
Donald Trump, the front-runner for the Republican nomination, had been touting Tribe’s scholarship on the question in the days leading up to the Harvard professor’s op-ed. In response, Cruz called Tribe “a liberal left-wing judicial activist.”
Back in 2012, a new young up and coming hot shot Republican was emerging in the great once very conservative state of Texas. He was, like Obama, a Harvard trained lawyer, except he actually had more on his résumé than communist community organizing.
In a campaign interview during his freshman senate race, a GOP Texas State Committee member sat down with the young candidate to ask a few poignant vetting questions, and here are the questions and answers from that interview…(Redacted information is to protect the witness at this moment, but the witness is willing to offer sworn testimony, as per the video at the bottom of this page)
Interviewer: “Hello Mr. Cruz, it’s a pleasure to meet you. My name is(redacted). I am a (redacted) County GOP Precinct Chair and you have my support and vote. I have one question for you if I may?”
Cruz: “Sure, go ahead.”
Interviewer: “What is your understanding of how one becomes a natural born Citizen?”
Cruz: “Two citizen parents and born on the soil.”
Interviewer: “Not exactly, but as I don’t have enough time to fully explain how one does become an natural born Citizen, based on your understanding, would you agree that Barack Obama is ineligible to be POTUS?”
Cruz: “I would agree.”
Interviewer: “So when we get you elected, will you expose him for the usurping fraud he is?”
Cruz: “No, my main focus will be on repealing Obamacare.”
Interviewer: “But Mr. Cruz, if he is exposed as the usurping fraud he is, everything he has done will become null and void. Everything!”
Interviewer: “At that point, Cruz reiterated his main concern, so it was obvious the conversation was over as far as Cruz was concerned. I thanked him for his time and wished him success in the runoff.”
But Cruz, whose campaign website has a section headed “RESTORE THE CONSTITUTION,” Claims to believe that the Supreme Court has gone astray by refusing to enforce the original understanding of the Constitution. If he’s right, then he’s not eligible for the presidency.
That’s when calls for him to seek the Oval Office in 2016 started to take shape, and that’s when Sen. Ted Cruz became very concerned about a fact that he knew, but had never disclosed to the public, including during his Senate campaign a year earlier… Ted Cruz was born a Canadian citizen at birth, and remained a legal citizen of Canada, all the way up until May14, 2014.
In short, Sen. Ted Cruz was a legal citizen of Canada when he ran for and became a U.S. Senator, without ever having disclosed his Canadian citizenship to Texas voters, which under both Texas and U.S. Election law, is an act of fraud. Ted Cruz had committed election fraud by failing to disclose to Texas voters that he was a Canadian citizen in 2012.
Enter the Harvard lawyers… the same lawyers that had been protecting Barack Hussein Obama for six years… Cruz was advised by his legal friends to immediately renounce his Canadian citizenship, which he did, on May 14, 2014…
…and by June of 2014, friends and supporters at Fox News were beginning to clear his path to the White House by floating the idea that Ted was now a natural born Citizen of the United States, based upon renouncing his Canadian citizenship.
Only days later, on the heels of the Harvard opinion piece, Sen. Ted Cruz stood among 12,000 Liberty University students forced to attend the event, and announced he was running for the office of President.
If you ask the average American citizen what natural born Citizen is, they do not know. Even many, who think they know, do not know. Since Barack Obama, numerous definitions based on numerous political agendas have been floated, making what was once a very common simple term too ambiguous to enforce.
The people have allowed the lawyers to amend the Constitution by simply publishing a legal opinion.
What was once a long fought leftist battle to eliminate all Constitutional foundations for sovereign government by a sovereign nation and of its sovereign citizens, has now been joined by Republicans like Ted Cruz, Marco Rubio and Bobby Jindal, none of whom are actually eligible for the Oval Office, and all of whom know it.
Now, what does natural born Citizen really mean and why did our Founder’s choose that term in an overt effort to prevent people like Barack Obama, Ted Cruz, Marco Rubio, Vladimir Putin and bin Laden’s son from ever gaining access to the Oval Office?
The answer is found in the Founders statements identifying the source of the term, Vattel’s international treatise on Natural Law, The Law of Nations, book 1 – Chapter XIX. Every American can easily find it, read it, understand it and know it. There is nothing at all ambiguous about it… unless you let your political agenda drive your facts.
The true definition of the natural born Citizen requirement for the Oval Office as described throughout the entirety of Chapter XIX can be summed up in this section from 212…
“As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
If allowed to succeed, again, the American people will have participated in the end of the American Presidency. Their silence will be their consent…
That is the worst part of this entire saga in the demise of the United States… The people put their politics ahead of their Constitution and as a result, they are about to let it all slip away, their freedom and liberty, all of it.
The mission to globalize the United States is only possible once it is no longer a requirement that only a True American, a natural born Citizen, can hold the office of Commander-in-Chief.
The people appear willing to accept this now. The only way to finally settle the problem is take it to the courts, and we know how supportive they are of the Constitution’s intents and meanings. It’s pretty well summed up in the following video: