SAN ANTONIO, Jan. 11 – In September, before presidential candidate Donald Trump viewed Sen. Ted Cruz as a threat to his potential victory in the Republican primary, Trump told ABC News, “I hear it (the issue of whether Cruz’s eligibility to hold the office of the presidency) was checked out by every attorney and every which way and I understand Ted is in fine shape.”
Since that time Cruz has assumed a steady lead in every recent poll in the crucial first voting state of Iowa and is on Trump’s heels in critical states like Florida, California and South Carolina.
If there has been any lesson that could have been taken from this crazy primary season, it is that, when Trump feels threatened, he lashes out any way he feels can negatively impact his perceived competition.
Accordingly, Trump has decided to turn his knives against Cruz.
Therefore, Trump has flip-flopped on the issue of Cruz’s eligibility and is now claiming that Cruz may not be a “natural born citizen,” which is one of the requirements to hold the office of president of the United States, as dictated in Article 2, Section 1 of the Constitution. Cruz was born in Calgary, Canada, to an American mother (the birth certificate of Cruz’s mother was produced this week to avoid any claims that she was not an American citizen) and a Cuban-American father.
Cruz’s mother was born in Wilmington, Delaware, and was in Canada only temporarily for work. She soon thereafter got transferred back to Texas, where she and the Cruz family live to this day.
Unfortunately for Trump, regardless of the fact that the Supreme Court has never ruled on this issue, it has been settled law for centuries: There are two kinds of American citizens: a “natural born” citizen and a naturalized citizen.
The difference is that a naturalized citizen had to go through some sort of naturalization proceedings before being eligible for citizenship. A “natural born” citizen is an individual that has been a citizen since birth, as Cruz has.
In essence, if one is born to an American parent, be it overseas or not, that individual is an American citizen immediately and does not have to go through any sort of naturalization process. Therefore, that individual is a “natural born citizen,” as required by the Constitution for one to hold the office of the presidency.
There is one primary source that constitutional scholars begin with when analyzing the intended meaning of phrases in the Constitution when the issue has never been ruled upon by the Supreme Court: English common law, which refers to the law in England immediately prior to the American Revolution.
A large part of early American jurisprudence was based upon the English common law.
According to a Harvard Law Review article written by Paul Clement (solicitor general for the Bush administration) and Neal Katyal (solicitor general for the Clinton administration), all historical resources, including English common law, completely validates the point that a person born a United States citizen, without having to go through the naturalization process, is in fact a “natural born citizen,” as the Constitution requires for one to hold the office of the presidency.
As a note of clarification, the solicitor general is the lawyer who argues all of that particular administration’s cases in front of the Supreme Court, so there may not be any individuals in the country better equipped to analyze this issue, other than the justices themselves.
The main argument from English common law relies on the concept of sovereignty, and, according to an article by famed constitutional scholar and Georgetown University law professor Randy Barnett, this issue can most simply be understood using the following two basic principles:
- That “natural-born” membership depends on the relationship between one’s birth and sovereignty, and
- That, in a republic, the locus of sovereignty is in the bodies of the citizens themselves.”
Barnett concludes that the term “natural born citizen” was adapted by the framers [of the Constitution] from the well-known British concept of the “natural born subject” of the sovereign monarch. The offspring of the King were natural born subjects of the King regardless of where they were born, whether on English territory or not.”
The founding of America placed the sovereignty in the hands of the individual citizens, and not the king, as articulated best by the first Chief Justice of the Supreme Court, John Jay, and Justice James Wilson in the 1793 Supreme Court case of Chishom v. Georgial; Barnett points out:
As Justice Wilson put it, laws “derived from the pure source of equality and justice must be founded on the CONSENT of those whose obedience they require. The sovereign, when traced to this source, must be found in the man,” meaning the individual person. He (Justice Wilson) then referred to the states as “an aggregate of free men, a collection of original sovereigns.”
Chief Justice Jay affirmed the “great and glorious principle, that the people are the sovereign of this country,” and he then immediately referred to Americans as “fellow citizens and joint sovereigns.”
The overall point being that in America individual citizens, rather than the King and his heirs, are the sovereigns.
Therefore, the individual citizens in America are granted the same sovereign rights that the king and his family enjoyed under the laws of England prior to the revolution. The fact that the King’s family, born inside or outside the territory of the crown, did not have to go through any sort of naturalization proceeding in order to become citizens.
This clearly indicates that American citizens do not have to go through similar proceedings and that those that are born to American citizen parent(s) are also “natural born citizens” as that phrase has become to be understood, and, more important, as that phrase was understood by the Founding Fathers at the time of the drafting of the Constitution.
This would include President Obama had he been born outside of the United States, but to his mother, a United States citizen.
Additionally, the First Congress followed this precedent when it passed the Naturalization Act of 1790 only three years after the ratification of the Constitution; it 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…”
Interestingly enough, this issue has come up numerous times throughout American history with much less fanfare: Barry Goldwater, Republican nominee for president in 1964 was born in Arizona before it became a state; George Romney, Mitt’s father, ran for president in 1968 and he was born in Mexico while his parents were Mormon missionaries there; and, Sen. John McCain, failed Republican nominee for president in 2008, was born in Panama, albeit on an American military base.
In the case of all three previous candidates for president, the fact that at least one of each of their parents’ was an American citizen laid the question of eligibility to rest.
Finally, as discussed in the National Review, legal scholars are firm about Cruz’s eligibility. “’Of course he’s eligible,’ Harvard law professor Alan Dershowitz tells National Review Online. ‘He’s a natural-born, not a naturalized, citizen.’ Eugene Volokh, a professor at the UCLA School of Law, agrees, saying the senator was ‘a citizen at birth, and thus a natural-born citizen — as opposed to a naturalized citizen, which I understand to mean someone who becomes a citizen after birth.'”
This flip-flop from Trump on the issue of Cruz’s eligibility is nothing short of a self-serving political attack but, legally, it does not have a leg to stand on. This desperate attempt to damage Cruz at any cost exposes the fact that the moral high-ground that Trump constantly tries to claim by saying that only politicians will say anything to get elected — but that he is different — is crumbling right under his feet.