Tuesday, January 26, 2016

The Evolution of the “Natural Born Citizen” Idea: An Explainer For Students

[I am teaching a course on "Immigration and Literature" for first year-students this spring. Today we talked about the controversy about whether Ted Cruz is eligible to be President as an opening conversation. I wrote up this explainer for the students to introduce them to some of the basic outline of the history.]

In the past few weeks, there’s been a growing debate over whether Senator Ted Cruz is eligible to run for President. There are certain basic facts that everyone agrees on: Ted Cruz was born in 1970 in Alberta, Canada, to an American mother and a Cuban father; the family relocated to Texas in 1974 and Cruz grew up there. The Constitution requires that a person who runs for President be a “natural born citizen.” Is a person with one American parent who was born outside of the U.S. eligible to be President?

Most Constitutional Law specialists seem to think that the answer is yes, because Cruz’s mother was an American citizen. But a number of serious scholars have raised questions about the assumptions they’re making. One is a Widener University Law Professor named Mary Brigid McManamon. Her essay arguing that Cruz is ineligible (if you’re curious) is here. Warning: it’s a bit legalistic:


Two terms that are helpful to know before we get deeper into this: “originalism” refers to a mode of interpreting the Constitution to the effect that our goal is to understand what the Framers must have meant at the time. According to Originalists, all laws we pass today need to be in line with their intentions. Originalists are often politically and socially conservative (several of the conservative Supreme Court members on the current Supreme Court consider themselves to be “originalists”). Against originalism is a philosophy described as the “living Constitution” philosophy. According to people who follow this line of thinking, the Constitution was never meant to be an absolute document that could never change. As society changes and evolves, we have to pass laws to describe events no one in 1789 could have dreamed of. (The Framers could never have imagined digital surveillance or drone warfare. Don’t we need to think about those types of controversial practices using reasoning based in our present moment?)

A Timeline -- to help understand the history of the controversy

1789: Ratification of the U.S. Constitution, which contains this phrase:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Some constitutional law experts (who follow the “originalist” methodology) have argued that what “natural born” meant in 1789 is exactly what it sounds like: you have to be born in the United States.

1790: Naturalization Act of 1790

"the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”

1795: Naturalization Act of 1795. The phrase “shall be considered as natural born citizens” is removed. The author of the revised statute was James Madison, an extremely important figure in the drafting of the Constitution (later, he would be the fourth President of the United States). In this version, the sentence is “shall be considered citizens of the United States.”

Mary McManamon thinks the removal of the phrase in the 1795 bill is telling:

Third, Katyal and Clement put much weight on the first U.S. naturalization statute, enacted in 1790. Because it contains the phrase “natural born,” they infer that such citizens must include children born abroad to American parents. The first Congress [1790], however, had no such intent. The debates on the matter reveal that the congressmen were aware that such children were not citizens and had to be naturalized; hence, Congress enacted a statute to provide for them. Moreover, that statute did not say the children were natural born, only that they should “be considered as” such. Finally, as soon as Madison, then a member of Congress, was assigned to redraft the statute in 1795, he deleted the phrase “natural born,” and it has never reappeared in a naturalization statute.

1986: Immigration and Nationality Act of 1986

Naturalization and Immigration laws passed by Congress have continued to evolve and redefine what it means to be a “Natural Born Citizen.” There have been a number of laws passed in the 20th century that have attempted to clarify various issues and complications relating to the meaning of “natural born citizen.” For instance, earlier there was doubt as to whether someone born in a U.S. territory that is not a state (say, Puerto Rico or Guam) could be called a natural born citizen (the consensus is that they are).

In 1986, Congress defined natural born citizen for people born overseas as follows:

  • If both parents are U.S. citizens, the child is a citizen if either of the parents has ever had a residence in the U.S. prior to the child's birth
  • If one parent is a U.S. citizen and the other parent is a U.S. national, the child is a citizen if the U.S. citizen parent has lived in the U.S. for a continuous period of at least one year prior to the child's birth
  • If one parent is a U.S. citizen and the other parent is not, the child is a citizen if
    • the U.S. citizen parent has been "physically present" in the U.S. before the child's birth for a total period of at least five years,and
    • at least two of those five years were after the U.S. citizen parent's fourteenth birthday.

Ted Cruz’s mother meets those criteria; she lived in the U.S. for most of her life.

That law seems like it ought to solve everything. But some legal scholars have doubts. For one thing, the law defines people in that last category as citizens -- not “natural born citizens.”

For another, note that this is a law passed by Congress in 1986. For a real Originalist, nothing passed in 1986 ought to matter. What matters for them really is the meaning of the text as the Framers intended it in 1789. What did they intend, then? We don’t entirely know (and that fact is by itself an argument against Originalism in my opinion: there are many things the original Framers of the Constitution could not have thought of that we now have to make decisions about. Living Constitutionalists would say that we should make the fairest decisions we can based on the realities of the world we live in today, not the world as it was 226 years ago).

People like Mary McManamon have argued that for it to be unambiguously clear that someone like Ted Cruz is eligible to be President, what we really need is a new Amendment to the U.S. Constitution that plainly states that a person meeting those criteria is a natural born citizen who is eligible to serve as President. Not just a law passed by Congress -- but an actual Amendment to the Constitution itself. Here’s what Prof McManamon says:

Article I of the Constitution grants Congress the power to naturalize an alien — that is, Congress may remove an alien’s legal disabilities, such as not being allowed to vote. But Article II of the Constitution expressly adopts the legal status of the natural-born citizen and requires that a president possess that status. However we feel about allowing naturalized immigrants to reach for the stars, the Constitution must be amended before one of them can attain the office of president. Congress simply does not have the power to convert someone born outside the United States into a natural-born citizen.

It’s unlikely that a Constitutional Amendment will happen anytime soon; however, given that there are now numerous legal challenges to Cruz’s eligibility that have been filed, it’s entirely possible that the Supreme Court will rule on the issue sometime this year. My bet would be that they say that Cruz is, after all, eligible to be President. But even then, if he actually wins the job, because of this controversy there will likely be some folks around who will doubt it.




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