Among the provisions in the U.S. Constitution that legal experts find most objectionable is the presidential qualification clause spelled out in Article II, Section 1. In relevant part, the Founding Fathers required that to be eligible, a candidate had to have been a resident of the country 14 years, had to be 35 years old and most puzzlingly had to be a “natural born citizen.” Senators and representatives were held to a lower standard of being simply citizens, whether “natural born” or naturalized.
While it is likely that the drafters understood what they meant by “natural born citizen,” the rest of us have been flummoxed, as the phrase appears nowhere else in the entirety of the Constitution.
There is near unanimity that the phrase bars naturalized U.S. citizens from aspiring to the nation’s highest office and that, conversely, anyone born physically within the boundaries of the 50 states is eligible, even if his or her parents were aliens, even illegal aliens. However, there remains considerable doubt and controversy whether an individual born abroad to American parents may be elected.
In such a case, despite willful thinking, we simply do not know what is constitutionally permissible because none of the nation’s 44 presidents has been born outside the national border. This year, however, a leading candidate, Ted Cruz, born in Calgary, Alberta, in 1970 of an American national mother and a Cuban national father, will appear on the primary ballots, the first time a non-native born citizen has been in that position. Whether his campaign results in his GOP nomination and then his election, Cruz will make U.S. history and likely face challenges based on the inevitable questions as to his constitutional legitimacy.
This issue is not new. In 1964, Sen. Barry Goldwater, the GOP nominee for president, was challenged on the basis that he had been born of two American parents in Arizona in 1909 while it was still a territory. Eight years ago, Sen. John McCain’s candidacy was challenged because he had been born in 1936 in the U.S.-administered Panama Canal Zone while his father, an admiral, was in military service to the country.
The Obama birther movement
Most recently, a rather vitriolic birther movement questioned the legitimacy of Barack Obama’s presidency based on the somewhat conspirational suggestion that he had been born abroad in either Kenya or Indonesia, albeit to an American mother.
In each of these cases, constitutional arguments were raised but never adjudicated, that these candidacies were in violation of the Natural Born Citizen clause. In the case of Goldwater and McCain, a compelling counterargument was advanced that the candidate had been born, if not in a state, admittedly in U.S. territory, under U.S. jurisdiction and subject to U.S. laws. In McCain’s case, a further argument was advanced that he was born in the naval hospital in the Canal Zone because his father, a U.S. fleet admiral, had been sent there in service to the country.
And as if that were not sufficient to ensure that there would be no constitutional objections, the Senate unanimously passed a nonbinding resolution declaring McCain a “natural born citizen.”
In the case of President Obama, it was not until he had published multiple certified copies of his Honolulu, Hawaii, birth certificate proving he was a natural born citizen that the birther movement was eventually defused.
Cruz does not enjoy any of the mitigants of these prior situations. He was born in a foreign country, not a U.S. state or dependency. He was born a foreign citizen of Canada by virtue of Canadian law, owing nominal allegiance to a foreign sovereign and remained a dual national until 2014 when he decided to run for the presidency. Only his mother was American; his father held Cuban and Canadian citizenship. His parents were not working in Canada at the behest of, or in service to the U.S., but working in the oil sector for their own company.
There have been arguments raised that “natural born” must include the children of American citizens born abroad. This may well be the case – but there is no way of knowing this until such a case comes to the Supreme Court because the requirement is embedded in the fabric of the Constitution, and only the Supreme Court has authority to interpret the Constitution. Congress has no power to declare by law that a foreign born person is a “natural born citizen.” Congress has plenary power under the Constitution to decide which persons may be naturalized. It is indeed the case that Congress has passed legislation that makes Cruz a U.S. citizen at birth, but in his case it is simply undecided whether being a citizen at birth is the same as being a “natural born citizen.”
It is difficult to guess what five votes on the Supreme Court would decide if confronted with Cruz’s situation. As there is no case directly on point, the court inevitably would look at lower court decisions discussing the meaning of citizenship; it would look at the scant legislative record of the Founding Fathers, including the genesis of the phrase by the 11-man Committee on Detail on Sept 4, 1787, which introduced the requirement of “natural born” citizenship, apparently in reaction to an ominous letter from John Jay, the secretary of Foreign Affairs, to the president of the Constitutional Convention, a certain George Washington, warning about the risks of any foreign allegiances in the commander in chief.
What founders meant
Where there is much confusion in the public is the suggestion that anyone is doubting Cruz’s citizenship. He is obviously a citizen. His mother is American, and he has been granted a passport that is conclusive proof. The question is simply whether he is a natural born citizen within the meaning of the Founding Fathers.
The country has been exhausted by the seemingly endless and ultimately fruitless birther controversy surrounding Obama’s birthplace over the last few years. A natural skepticism is therefore to be expected if anyone subsequently raises anew a related challenge. But what is different is that while Obama was indeed a natural born citizen having been born within a U.S. state, Cruz was born in a foreign country, a citizen of Canada and owing nominal allegiance to the Canadian head of state.
This is all tiresome, no doubt. And the temptation is to brush the problems under the carpet as some dusty antiquated obstacle irrelevant to these fast-paced globalized 24/7 days. Such an attitude would be in conflict with the professed esteem with which we hold the Founding Fathers. We venerate the Constitution’s drafters as geniuses whose work product has stood the test of time and is properly appreciated as one of the greatest living documents of history.
Dare we cavalierly dismiss their concerns by ignoring this perplexing phrase, without properly adjudicating it before the proper arbiter, the Supreme Court?
Edmund C Tiryakian is a lawyer in Hillsborough. Paul Finkelman is a visiting professor at the University of Saskatchewan School of Law in Saskatoon.