At Liberty Law Blog, David Upham: Ted Cruz: A Probable Natural-Born Citizen of the American Republic. From the introduction:
In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States. Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”
I write to note my disagreement with their certitude, but tentative agreement with their conclusion.
From the core of the argument:
In particular, [Clement and Katyal] cite certain English statutes and Congress’s 1790 Naturalization Act, which affirmed that children born to subjects or citizens abroad were to be deemed natural-born subjects or citizens for all intents and purposes.
But the fact that these provisions are found in “naturalization” acts strongly indicates that such foreign-born persons were not truly “natural” but had to be naturalized by force of the statute. That is to say, the statutory provisions seemed designed to make someone “natural” who was not otherwise natural. They resemble later adoption statutes that “deemed” the child’s new guardians to be his “parents” for all intents and purposes.
I agree that the text poses more of a challenge that Clement and Katyal admit. The phrase "natural born Citizen" suggests that there is a category of people who are born citizens but are not natural born citizens. And further, "natural" is often understood as the opposite of "made so by statute."
Nonetheless, I agree with Clement and Katyal that the parliamentary practice is decisive. Parliament plainly understood itself to have the power to declare persons born abroad to English parents to be "natural born." Perhaps that is a odd use of the word "natural," but that is the way parliament used it. If the American framers wanted to restrict presidential eligibility to persons recognized as citizens by common law (but not by statute) they would not have used the phrase "natural born." Anyone with any familiarity with English law and practice (including via Blackstone) would have understood that the status of "natural born" could be conveyed by statute.
Professor Upham's solution is as follows:
But let me suggest another way in which Cruz’s eligibility could be vindicated. This way depends on recalling (1) that “natural-born” membership depends on the relationship between one’s birth and sovereignty, and (2) that, in a republic, the locus of sovereignty is in the bodies of the citizens themselves.
All authorities seemingly concurred that the offspring of the King, regardless of place of birth, were plainly the King’s “natural-born subjects.” No statute was ever needed to make such persons “subjects.” Indeed, as Blackstone added, even the King’s ambassadors, because of their representative capacity, likewise carried abroad, by extension, the movable bodily sovereignty of the King: “the children of the king’s embassadors born abroad were always held to be natural subjects.” Unlike children born abroad to ordinary subjects, these children required no parliamentary naturalization at all—they were always deemed “natural-born.”
In our republic, however, the citizens became the sovereign. As Chief Justice John Jay wrote in Chisholm v. Georgia, “at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country…; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.” If so, then the citizens of the American Republic arguably carry with their bodies abroad this sovereignty just as the King and His ambassadors had. Consequently, since 1776, any child born to a member of the sovereign citizenry of the United States is as much a “natural-born citizen” of our Republic as a child born to the sovereign King was the natural-born subject of the British monarchy.
Ted Cruz, then, is probably a natural-born citizen of the United States, not because he was a citizen “from birth.” Rather, he is a natural-born citizen because at his birth, he was the offspring of one of the Queens or Kings that compose the American Sovereign.
I would be more persuaded by this argument if there were any evidence that anyone in the founding era had this understanding of natural birth. So far as I know, however, to the contrary everyone at the time understood that the U.S. citizenship of people born abroad to U.S. parents depended upon a statutory grant (hence the 1790 naturalization statute, and its successors, which established such citizenship).
Related: Reader William Rawle points to these two additional sources:
The Library of Congress Legislative Reference Service report on the eligibility of George Romney (who was born in Mexico to U.S. citizen parents).
James Bayard's 1833 work A Brief Exposition of the Constitution of the United States, which discusses the eligibility clause here. Bayard observes (without citation or further explanation):
It is not necessary that a man should be born in this country, to be a "natural born citizen." It is only requisite he should be a citizen at birth and that is the case with all the children of citizens who have ever resided in the country, though born in a foreign country.
Posted at 11:17 PM