At Slate, Eric Posner: Ted Cruz Is Not Eligible to Be President. He adopts a plain meaning approach:
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 born citizen 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 natural born 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.
In general I'm pretty sympathetic to this sort of argument. But it has an important limitation: what seems like a straightforward reading of the text to us may not be the way people at the time of enactment read it. Often it is, because language has not changed all that much since the eighteenth century (despite some famous exceptions). Here, however, there's evidence of a different background understanding.
The core difficulty for the pure textualist view is that (as I've outlined previously, and as Professor Posner graciously acknowledges) eighteenth century English statutes and the first U.S. naturalization act in 1790 referred to persons born abroad to English or U.S. parents, respectively, as "natural born."
His counter is that these statues created a legal fiction, not an actual extension of the category:
[T]he statutes typically provided that a foreign born person would be considered a natural born subject for all “intents and purposes.” As legislatures often do, Parliament preferred using a comprehensive legal fiction (a person born abroad is treated as if he were natural born even though he is technically not) to using cumbersome new language piecemeal (explaining, every time new laws are passed, that they applied to foreign born subjects as well as natural born subjects). Parliament did not change the ordinary meaning of the words natural born; it just gave other people the status of those natural born.
Perhaps, but I don't see much evidence for this. Blackstone said that the children of English parents born aboard covered by the relevant statutes "are now natural-born subject themselves, to all intents and purposes, without any exception." (vol. 1, p. 361). That sounds to me like a change in the definition, not a legal fiction.
So in sum, as I develop in my draft article, I do think the pure textualist argument is plausible on its face, but it does not comport well with the way the relevant terms were actually used in legal practice. Sometimes our intuitive sense of what words mean (or even dictionary definitions) simply doesn't align with the way earlier generations used them, given the background that they had (but we don't).
RELATED: Professor Posner has some additional interesting posts on the subject on his blog, here, here and here.
Posted at 6:24 AM