Born in the USA?

By JOEL JOSEPH

Sen. Ted Cruz, a leading Republican candidate for President, is ineligible to be President of the United States. He was born in Calgary, Alberta, Canada on Dec. 22, 1970, to an American mother and a Cuban father. Donald Trump, when challenging President Obama’s eligibility for President, said, “if you’re not born in the United States, you cannot be president.”

The issue is not quite as simple as Mr. Trump contends. 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.” US Constitution, Article II, section 1, clause 5.

Natural Born Citizens

The origins of the Natural Born Citizenship Clause dates to a letter that John Jay wrote to George Washington on July 25, 1787. Mr. Washington was then president of the Constitutional Convention. Jay later authored several of the Federalist Papers and served as our first Chief Justice. At the time, as Justice Joseph Story later explained in his influential Commentaries on the Constitution, many of the framers worried about “ambitious foreigners who might otherwise be intriguing for the office.” “Permit me to hint, whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in chief of the American army shall not be given to nor devolve on, any but a natural born Citizen,” John Jay wrote.

The Founding Fathers clearly wanted to avoid the potentiality of a president having loyalties to a foreign nation. Sen. Cruz had loyalties to three nations: Canada, the United States and Cuba. It was not until May 14, 2014, that Sen. Cruz renounced his Canadian citizenship. The fact that both of his parents were not US citizens puts in question his claim to being a “natural born” citizen.

George Washington thanked John Jay for his concerns about citizenship in a reply dated September 2, 1787. Shortly thereafter, the natural-born citizenship language appeared in the draft Constitution the Committee of Eleven presented to the Convention. There is no record of any debate on the clause.

What Was the Intent of the Founding Fathers?

While it is possible to trace the origins of the Natural Born Citizenship Clause, it is harder to determine its intended scope—who did the framers mean to exclude from the presidency by this language?

The Naturalization Act of 1790 probably constitutes the most significant evidence available. Congress enacted this legislation just three years after the drafting of the Constitution, and many of those who voted on it had participated in the Constitutional Convention. The act provided that “children of citizens (note the plural, meaning both mother and father) of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural-born citizens.” Since Sen. Cruz was not born in the United States and was not a child of citizens of the United States, he is clearly not a natural-born citizen.

There is no record of discussion of the term natural born citizen, but it is reasonable to conclude that the drafters believed that foreign-born children of American parents who acquired citizenship at birth could and should be deemed natural born citizens. But it is also clear that a child born abroad with one US citizen parent and one foreign citizen parent has no claim to be a natural-born citizen and is thus ineligible to the President of the United States.

Joel Joseph is a lawyer and author of Black Mondays: Worst Decisions of the Supreme Court. He is chairman of the Made in the USA Foundation. Email joeldjoseph@gmail.com. Phone 310 MADE-USA.

From The Progressive Populist, February 1, 2016

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