Ted Cruz Is Not Eligible to Be President

With Ted Cruz the victor of the first contest of the GOP nominating calendar, we can no longer avoid the question mischievously posed by Donald Trump: Is Cruz ineligible to be president? Cruz was born in Canada to an American mother and a Cuban father. The Constitution says that only a “natural born citizen” can be president. Is Cruz a natural born citizen? (You may recall that before he attacked Cruz on this front, Trump spent months flogging a ludicrous version of this critique against President Obama, who was actually born in the United States, unlike Cruz.)

The words natural born citizen, and their original meaning at the time that this constitutional clause was crafted, go a long way to answering this question. In founding-era America, like today, a person could be a citizen by virtue of birth on American territory; a citizen by virtue of a statute that granted citizenship to him at birth; a “naturalized” citizen, meaning one who entered the country as an alien but later obtained citizenship via a process determined by law; and a foreigner.

A natural born citizen cannot be a foreigner. Foreigners are not citizens. A natural borncitizen cannot be a person who was naturalized. Those people are not born citizens; they’re born aliens. Most important for the purposes of the Cruz question, a naturalborn citizen cannot be someone whose birth entitled him to citizenship because of a statute—in this case a statute that confers citizenship on a person born abroad to an American parent. In the 18th century, as now, the word natural meant “in the regular course of things.” Then, as now, almost all Americans obtained citizenship by birth in this country, not by birth to Americans abroad. The natural way to obtain citizenship, then, was (and is) by being born in this country. Because Cruz was not “natural born”—not born in the United States—he is ineligible for the presidency, under the most plausible interpretation of the Constitution.

The historical background supports this view. In the founding era, it was possible—even common—for a head of state to be foreign born, and even to be a foreigner. The then-king of England—George III—descended from the German House of Hanover. His immediate predecessors—Georges I and II—were German born. William III—who came to power in the Glorious Revolution of 1688, which initiated the constitutional monarchy headed by the Georges—was himself Dutch. In the 1600s, the crown was passed among another group of foreigners—the House of Stuart. James I, who was jointly king of England and Scotland, was Scottish born, as was his son, Charles I.

The English tolerated foreign rulers because the rules of dynastic succession were widely accepted at the time. But the English resented and distrusted their foreign monarchs. After deposing James II—who as a Catholic, and a cousin and ally of Louis XIV of France, was suspected of foreign sympathies—Parliament banned Catholics from the throne. Moreover, Parliament declared that the nation would not be obligated to fight in defense of foreign dominions of a British king who is not “a native of this Kingdom of England.”

The founders admired the British form of government and modeled the president after the king. The risk that a person with foreign connections and sympathies might seize the presidency would have been uppermost in their minds when crafting the language that determined who could hold office. Other provisions in the Constitution ensured that members of Congress had significant attachments to the United States, though they could be foreign born; in the case of the presidency, the founders used stronger language. ...