Ted Cruz has a very real birther problem: The law is not settled — but the history is
The uproar Donald Trump caused by stirring the pot over the eligibility of Canadian-born Ted Cruz to serve as president awakened constitutional scholars. With or without biases, a good many of them have suggested that the historical record is not on Cruz’s side. By the nature of the news cycle, one thing or another will remove this new “birther” controversy from public view; it really shouldn’t go away, however, because the issues are broader than what the commentators are addressing.
Most who have studied the question at hand focus on the “original intent” of the founding generation. The most obvious problem concerns the meaning of “natural born” as written into the Constitution, and whether Cruz’s birth in Calgary disqualifies him. But two equally salient issues have been ignored. The first is that Cruz’s claim to natural-born status is based on his mother, because his Cuban-born father did become a Canadian citizen, and was only naturalized as an American citizen in 2005. Rafael Cruz came to the United States on a student visa, and kept his Cuban citizenship until he became a Canadian citizen. It is a historical fact (and a fact of law) that mothers did not possess the same right fathers did to grant their children American citizenship when the child was born outside of the United States. This is important.
The second underlying point commentators have ignored is the deeply troubling legacy of American democracy in allowing discrimination against a sizeable number of its “natural born” citizens––obviously we’re talking here about African-Americans––while making exceptions for a few whose claim is tenuous at best.
Many students of the Constitution misunderstand why “natural born” was added to the qualification for president. The legal historian Mary Brigid McManamon recently argued in the Washington Post that the term was derived from the common law notion of being born on the “soil” of the national domain. In the 1780s, “natural born” was a measure of political affection and political loyalty, which only proceeded from a person’s giving tangible evidence of having a genuine commitment to the “soil” and manners of the nation. The phrase, therefore, involved potent sentiment.
To say that “natural born citizen” is settled law is nothing more than a rhetorical ploy. It is not surprising that legal experts Neal Katyal and Paul Clement of Georgetown took to the Harvard Law Review to argue the opposite side from Harvard’s Lawrence Tribe on Cruz’s eligibility, because the same argument has haunted past scholars. In 1988, long before the Cruz question arose, Jill Pryor wrote in the Yale Law Journal (scrupulously documented) that the question of whether a person born abroad of one American and one alien parent “qualifies as natural born” remains unresolved. The meaning of citizenship has changed over the course of American history, and yet the Supreme Court has never made a specific ruling on this part of Article II of the Constitution. Most recently, in Salon, Harvard legal scholar Einer Elhauge makes a strong case against Cruz’s eligibility; but even he does not go far enough to clarify the questionable status of a mother’s right to pass on her citizenship to her children. ...