Cruz is not dis­qual­i­fied from the pres­i­dency

The Denver Post - - NEWS - By Ruth Mar­cus E-mail Ruth Mar­cus at ruth­mar­cus@wash­post.com.

The is­sue of whether Ted Cruz is con­sti­tu­tion­ally el­i­gi­ble to be pres­i­dent could not be more bo­gus. He is. Case closed.

I say this as some­one who could scarcely be more con­cerned about the prospect of Pres­i­dent Cruz. So con­cerned, in fact, that I have con­cluded, af­ter much angst­ing, that Pres­i­dent Trump would be prefer­able, given that night­mare choice. But notwith­stand­ing Don­ald Trump’s typ­i­cally ill-in­formed and sit­u­a­tional in­sin­u­a­tions, the con­sti­tu­tional re­quire­ment that the pres­i­dent be a nat­u­ral-born cit­i­zen does not dis­qual­ify Cruz.

Ar­ti­cle II, Sec­tion One, Clause 5 of the Con­sti­tu­tion, set­ting out min­i­mum re­quire­ments for the pres­i­dency, does not de­fine the mean­ing of “nat­u­ral-born cit­i­zen,” a lim­i­ta­tion in­tended, as John Jay wrote in a let­ter to Ge­orge Wash­ing­ton, to “pro­vide a strong check to the ad­mis­sion of For­eign­ers into the ad­min­is­tra­tion of our na­tional Gov­ern­ment.”

Taken in a vac­uum, “nat­u­ral­born” is ar­guably am­bigu­ous. It could be in­ter­preted to ap­ply to all who are cit­i­zens at birth, rather than those re­quired to go through a nat­u­ral­iza­tion pro­ceed­ing to at­tain cit­i­zen­ship.

Or — al­though this seems the more tor­tured anal­y­sis — it could be in­ter­preted to ex­clude those born out­side the phys­i­cal ju­ris­dic­tion of the United States to cit­i­zen par­ents. That would in­clude Cruz, who was born in Canada to a U.S cit­i­zen mother, and, there­fore, au­to­mat­i­cally a cit­i­zen him­self.

But even the strictest of con­struc­tion­ists do not ar­gue for such a blin­ders-on ap­proach. There is scant ev­i­dence of de­bate among the framers about the mean­ing of the term.

But pre­vi­ous in­ter­pre­ta­tions from Bri­tish ju­rispru­dence and near con­tem­po­ra­ne­ous leg­is­la­tion en­acted by the new U.S. Congress all ar­gue in fa­vor of an in­ter­pre­ta­tion that nat­u­ral-born refers to any­one who is a U.S. cit­i­zen at birth, no mat­ter where he or she was born.

The best anal­y­sis of this topic comes from two for­mer U.S. solic­i­tors gen­eral — Neal Katyal, who served Pres­i­dent Obama, and Paul Cle­ment, who worked for Pres­i­dent Ge­orge W. Bush — writ­ing in the Har­vard Law Re­view fo­rum. They con­clude: “All the sources rou­tinely used to in­ter­pret the Con­sti­tu­tion con­firm that the phrase ‘nat­u­ral-born cit­i­zen’ has a spe­cific mean­ing: namely, some­one who was a U.S. cit­i­zen at birth with no need to go through a nat­u­ral­iza­tion pro­ceed­ing at some later time.

“And Congress has made equally clear from the time of the fram­ing of the Con­sti­tu­tion to the cur­rent day that, sub­ject to cer­tain res­i­dency re­quire­ments on the par­ents, some­one born to a U.S. cit­i­zen par­ent gen­er­ally be­comes a U.S. cit­i­zen with­out re­gard to whether the birth takes place in Canada, the [Panama] Canal Zone or the con­ti­nen­tal United States.”

The first source of in­ter­pre­ta­tion in­volves the use of the phrase “nat­u­ral-born” in Bri­tish com­mon law, which rec­og­nized that chil­dren born to sub­jects out­side the em­pire were them­selves “nat­u­ral-born” sub­jects.

Sec­ond, just three years af­ter the Con­sti­tu­tion was drafted, the First Congress weighed in. The Nat­u­ral­iza­tion Act of 1790 pro­vided that “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.”

As Katyal and Cle­ment note, that ev­i­dence is “par­tic­u­larly per­sua­sive be­cause so many of the framers of the Con­sti­tu­tion were also mem­bers of the First Congress. That is par­tic­u­larly true in this in­stance, as eight of the 11 mem­bers of the com­mit­tee that pro­posed the nat­u­ral-born el­i­gi­bil­ity re­quire­ment to the Con­ven­tion served in the First Congress and none ob­jected to a def­i­ni­tion of ‘nat­u­ral-born cit­i­zen’ that in­cluded per­sons born abroad to cit­i­zen par­ents.”

The nat­u­ral-born re­quire­ment was not an ob­sta­cle to the can­di­dacy of Barry Gold­wa­ter, born in Ari­zona be­fore it was a state. It was not an ob­sta­cle to Ge­orge Rom­ney, born in Mex­ico to U.S. cit­i­zen par­ents. It was not an ob­sta­cle to John McCain, born in the Canal Zone. There are am­ple rea­sons to op­pose a Pres­i­dent Cruz. The place of his birth is not among them.

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