On the Meaning of “Natural Born Citizen”

Two former solicitor generals, one Republican and one Democrat, write in the Harvard Law Review (where Ted Cruz once served as editor), on what “Natural Born Citizen” means in the U.S. Constitution.  They conclude that Ted Cruz is eligible to run for President (of the United States).

Click here to read the full commentary from The Harvard Law Review, which is quoted in part below:

The Constitution directly addresses the minimum qualifications necessary to serve as President. In addition to requiring thirty-five years of age and fourteen years of residency, the Constitution limits the presidency to “a natural born Citizen.” U.S. Const. art. II, § 1, cl. 5. 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 Canal Zone, or the continental United States. See, e.g., 8 U.S.C. § 1401(g) (2012); Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 303, 66 Stat. 163, 236–37; Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797.

While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings. The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law.  See Smith v. Alabama, 124 U.S. 465, 478 (1888). and enactments of the FirstCongress. See Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888). Both confirm that the original meaning of the phrase “natural born Citizen” includes persons born abroad who are citizens from birth based on the citizenship of a parent.

As to the British practice, laws in force in the 1700s recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used “natural born” to encompass such children. See United States v. Wong Kim Ark, 169 U.S. 649, 655–72 (1898). These statutes provided that children born abroad to subjects of the British Empire were “natural-born Subjects . . . to all Intents, Constructions, and Purposes whatsoever.”7 Ann., c. 5, § 3 (1708); see also British Nationality Act, 1730, 4 Geo. 2, c. 21. The Framers, of course, would have been intimately familiar with these statutes and the way they used terms like “natural born,” since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone’s Commentaries,  See 1 William Blackstone, Commentaries *354–63. a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.

No doubt informed by this longstanding tradition, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were “natural born Citizens.” The Naturalization Act of 1790 Ch. 3, 1 Stat. 103 (repealed 1795). 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: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .”

Loretta Lynch meets Ted Cruz. A grand old time is had by all

This link will take you to the full story at the aptly named hotair.com, which includes video of questioning by Senator Cruz.

Confirmation hearings for Loretta Lynch, President Obama’s nominee to replace Eric Holder, got underway this week. One of her inquisitors was Senator Ted Cruz (R – Tex) who had plenty of questions, many related to the performance of the current Attorney General and how her approach might differ, if at all. The conversation would, in my opinion, be described as polite and professional, while still being confrontational. This first section (which starts in the first couple of minutes in the video below) deals with the limits of discretion in prosecution.

With regard to the limits of executive power, Sen. Cruz asked, “Let me ask about your understanding of prosecutorial discretion. Would it allow a subsequent president… to state that there are other laws that the administration will not enforce – labor laws, environmental laws – would it allow a president to say every existing federal labor law shall heretofore not apply to the state of Texas because I am using my prosecutorial discretion to refuse to enforce those laws? In your judgment, would that be constitutional?”

Nominee Lynch responded, “Again, I would have to know what legal basis was being proposed for that.”

Sen. Cruz continued, “I find it remarkable that you are unable to answer that question. I can answer it straightforward. It would be patently unconstitutional for any subsequent president to refuse to enforce the tax laws, or the labor laws, or the immigration laws for the very same reason that President Obama’s actions refusing to enforce immigration laws are unconstitutional. And it is discouraging that a nominee who hopes to serve as attorney general will not give a straightforward answer to that question.”