With the presidential eligibility of Senator Ted Cruz coming into question a great deal in recent days, it seems like a timely thing to blog about. ABC News is reporting:
The Constitution's phrase, “natural born citizen,” isn't used elsewhere in the document or otherwise explained. It suggests to some people that only people born in the United States qualify as natural born, though many scholars reject that reading.
Count me among those many scholars. The term “natural born citizen” very definitely does not require birth in the United States, and this should be extremely obvious. Lord Coke wrote in 1608:
[I]f any of the King's ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King's dominions.
And William Blackstone wrote in 1765:
[B]y several more modern statutes … all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
These excerpts from Coke and Blackstone are consistent with the actual words “natural born citizen.” Virtually no one disputes that Cruz is a "born citizen," and the only issue here is what "natural" means. The English lexicographer Samuel Johnson wrote in 1756 that the word "natural" means "native," and the word "native" in turn means either an "inhabitant" or an "offspring." So a natural born citizen is someone who was born a citizen by virtue of being an inhabitant of the United States, or (like Cruz) by virtue of being an offspring, just as Coke and Blackstone said. I don't know if Ted Cruz is the best candidate, but certainly he is a natural born citizen, in my opinion.
There is a legitimate question, though, about whether a federal statute can completely control what a "natural born citizen" means, and to that the answer must be "no." If a person was not a citizen at birth, then I don't think Congress can retroactively make him such. Nor can Congress make someone a "natural born citizen" if he is born overseas without at least one parent who is a U.S. citizen. But Congress has not done any of that with respect to Cruz, so I do not see any problem with considering him to be a natural born citizen.
MICHAEL RAMSEY ADDS: My prior views are here and here. I agree with Andrew's conclusion, though I don't think it's quite as obvious as he does. I hope to have more to say later. UPDATE: At Volokh Conspiracy, Jonathan Adler and Randy Barnett also find Senator Cruz to be eligible on generally textualist/originalist grounds. Professor Adler relies principally on this short article by Paul Clement and Neal Katyal, which gives the conventional account but which I regard as somewhat underdeveloped. Professor Barnett has a interesting different approach. Derek Muller has some further thoughts here.
Posted at 2:47 PM