Your Liberty is Our Interest

The Cruz Birther Question


By Theresa Camoriano

I have done some research on the question of whether Ted Cruz meets the Constitutional requirements to be eligible to run for President of the United States, and I would like to share with you what I have found.

The Constitution requires that the candidate be a “natural born citizen”.  That phrase is not defined in the Constitution.  Most Constitutional scholars agree that it means  “a citizen at birth” – someone who does not need to be naturalized in order to become a citizen.  This interpretation is consistent with the way the phrase was used in English common law, and it is consistent with the way it was used in early U.S. legislation.  Probably the best analysis I have read is found here.  English common law included as “natural born” people who were born abroad to British subjects.

I have heard two talk show hosts raise issues, and I want to answer them here.

Michael Medved asked what is the difference between the people who challenged Obama’s being eligible if he was born in Kenya to an American mother and Cruz’s being eligible being born in Canada to an American mother.  The difference is that the U.S. statute that confers citizenship on children at birth based on the citizenship of the parent has residency requirements for the parent.  They include that the U.S. citizen parent have resided in the U.S. for at least five years after their 14th birthday.  Obama’s mother did not meet that requirement, because she was only 18 at the time Obama was born.  Cruz’s mother was older, and did meet that requirement.  Thus, if Obama was born in Kenya, he would not have been a U.S. citizen at birth, while Cruz, being born in Canada to a mother who met the residency requirements to confer citizenship, was a U.S. citizen at birth, and is eligible to be President.

Dennis Prager criticized Cruz for saying in the debate that John McCain was born in Panama.  He said that McCain was born in the Panama Canal Zone, which was the same as being born in the U.S.  Actually, that is not correct.  The Panama Canal Zone was under U.S. control but was not an incorporated United States territory at the time McCain was born.  A law passed in 1937, after McCain was born, retroactively granted U.S. citizenship at birth to children born in the Canal Zone to at least one U.S. citizen parent.  So McCain was in a very similar position to Cruz with respect to eligibility for the presidency.  He would have been a “natural born” citizen, or a citizen at birth, based on the citizenship of his parents, not based on the location of his birth.  When McCain was the Republican candidate, the U.S. Congress passed a resolution saying that McCain was eligible.

Ann Coulter has come up with a theory that says “natural born” only means born in the U.S., because that is the only definition that cannot be changed by Congress without a Constitutional amendment.  She creates a legal fiction that Ted Cruz was naturalized at birth, making him a naturalized citizen, not a “natural born” citizen.  This theory is not consistent with the way “natural born” was used in British common law at the time of the Constitution nor with the way “natural born” was used in the 1790 U.S. statute concerning citizenship, nor with the law at the time Cruz was born.

Ultimately, the question will come down to whether, when the U.S. Congress counts the electoral votes, in accordance with its power under the Constitution, it is willing to count the electoral votes that have been cast for Cruz.  If so, then it will have carried out its responsibility under the Constitution to determine whether Cruz meets the requirements for President under the Constitution.

January 18th, 2016 at 11:20 am

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