Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, says the constitutional debate over Ted Cruz’s presidential eligibility comes down to two dueling propositions, with no middle ground between them.
THE STATEMENTS AT ISSUE:
“No person except a natural born citizen…shall be eligible to the Office of President.”
– Part of the wording of Article II, Section 1, of the U.S. Constitution.
“The original understanding of ‘natural born citizen’ – anyone who was a citizen of the United States at the moment of birth – comports with the Framers’ purpose in adopting this requirement in the Constitution. The Framers included the Natural Born Citizen Clause in response to a 1787 letter from John Jay to George Washington, in which Jay suggested that the Constitution prohibit ‘Foreigners’ from attaining the position of Commander in Chief….It is inconceivable that the Framers intended to exclude a U.S. citizen at birth from holding the office of President, simply because of where he or she happened to be born.”
– Excerpt from a legal brief filed in a federal trial court in Houston by lawyers for Republican presidential candidate Ted Cruz, challenging the courts’ power to bar him from the presidential election ballot because he was born in Canada; his mother was a private U.S. citizen. U.S. District Judge Gray H. Miller will hold a hearing on April 13 on the Cruz plea to dismiss the case.
“The language ‘natural born citizen’ fairly clearly indicates that it could not mean anyone born a citizen or else the text would have just simply stated ‘born citizen.’ The word ‘natural’ is a limiting qualifier that indicates only some persons who are born citizens qualify. Ted Cruz’s interpretation simply reads the word ‘natural’ out of the constitutional text. The constitutional Framers actually rejected a proposal to make any ‘born citizen’ eligible to be President….Ted Cruz is not a Natural Born Citizen.”
– Excerpt from a legal brief filed by Harvard law professor Einer R. Elhauge in a New York state appeals court, supporting a challenge to Ted Cruz’s eligibility to be on the presidential primary ballot in New York on April 19. Since the professor’s filing, the appeals court has dismissed the case on a procedural technicality.
WE CHECKED THE CONSTITUTION, AND…
When America’s founding document includes words but does not also include the specifics of what those words were intended to mean, lawyers and judges go looking outside the document for some guidance. Supreme Court rulings obviously are a key source, but the simple fact is that the court has not filled in all of the blanks in the Constitution’s meaning.
The lively and sometimes unpleasant debate that has arisen in the Republican presidential debates over what the Article II phrase “natural born citizen” means as a necessary qualification to run for the president has made for a good deal of political theater, diverting if not entirely enlightening.
But, in a surprising number of courts around the country, that same debate has continued for months, and on a deeply serious level. It centers there, as it has in the GOP debates, on candidate Ted Cruz, a Republican senator from Texas. He was born in Canada when his mother and father lived at the time. His mother was a private U.S. citizen.
The constitutional debate has actually come down mainly to two dueling propositions, and there is no middle ground between them.
The one proposition, argued by the Texas senator himself, his lawyers and those who share his view, is this: Anyone born a U.S. citizen, including anyone born overseas to at least one U.S. citizen parent, satisfies the qualification.
The other argument, raised by voters seeking to keep Cruz off of election ballots this year and supported by some legal scholars, is this: Only those actually born within the United States itself, or those born abroad while a parent was serving in the U.S. military or diplomatic corps, can satisfy Article II.
As could be expected, each side has its own interpretation of British legal history, as well as its own understanding of the specific language of a number of federal laws defining citizenship in specific situations. In other words, the guiding sources on which the two sides rely may be said to be in some tension.
In addition, both sides have their own way of reading a supposedly decisive ruling on the question by the Supreme Court, the ruling in 1897 in the case of Wong Kim Ark. It is fair to say that, neither in 1897 or since, has the Supreme Court settled the issue, once and for all.
This is not a debate that has just arisen in the current presidential election cycle. It has come up before, as with the candidacy in 2008 of Panama-born Senator John McCain when the Arizona Republican ran for the White House. But McCain, it turned out, could meet each version: his parents were citizens, and both were in the military in Panama when he was born.
One of the reasons that the issue continues to linger uncertainly as a constitutional matter is that there have been serious barriers to a ruling that courts have not been able to get past. One is whether anyone can claim a sufficient legal injury from an ineligible presidential candidacy, to satisfy Article III’s limits on federal courts’ power to decide. Another is that the question is often treated as a “political question,” beyond the authority of the courts because its resolution is lodged with the Electoral College and with Congress. Another is that the issue usually does not get explored fully before the issue goes away as legally moot because the candidate either did not get a party nomination, or lost an election.
So far, none of the cases involving the Ted Cruz candidacy has resulted in a final ruling, one way or the other, in state or federal courts. If the Texas senator does not win the GOP nomination, then, of course, the issue will fade away again. But that is not to suggest that it is not a serious constitutional question that could use an answer – some day. In the meantime, the voters will be the ones who decide.
