Ted Cruz: Eligible for the Presidency? Or Not?

By Douglas V. Gibbs

Ted Cruz was born in Canada, and so there is a lot of talk about whether or not the man is eligible to be President of the United States.  The question arises from a clause in Article II of the United States Constitution that provides, as an eligibility requirement for President, that the person is a "Natural Born Citizen."  No detailed definition is given, no clarification in case the President has a Kenyan father, and no explanation for kids born outside the good ol' U.S.A.

In the society of early America, Natural Born Citizen was a commonly understood term, and the definition was readily understood, so a blow-by-blow definition was not necessary in the text of the Constitution.  There are, however, documents and rulings that clarify the definition.  For our purposes, the eligibility regarding Ted Cruz comes down to one simple question.  "Was his father naturalized before, or after, Ted was born?"

"Natural Born Citizen," and "Citizen," are two different things, so first, let's not drag the 14th Amendment into the discussion.  The Citizenship Clause, which most people think grants "birthright citizenship" does not apply in this case.  Ted Cruz is undoubtedly a citizen of the United States, even if his dad was not a naturalized citizen prior to Ted's birth, because of allegiances.  "Subject to the jurisdiction thereof" in the Citizenship Clause near the start of the 14th Amendment means more than what lawyer-critters in today's society claim, specifically when it comes to addressing loyalties.  Two ambassadors from France could have a child on American Soil, but that does not make the kid an American citizen.  Their allegiance is to France, therefore the child's citizenship is French.  Two immigrants that legally entered the United States and have green cards, have shown that they are participating in the legal process of becoming American, so their children, regardless of birthplace, would be American citizens.  However, like the ambassadors, if a couple of illegal aliens, whose allegiance still remains with their home country, a fact revealed by the reality that they weren't even willing to abide by American laws to get here, have a child on American Soil, that child is a citizen of the country the illegal aliens came from.

Like Citizenship, the question of Natural Born Citizen also springs from the desire by the Founding Fathers to ensure allegiances.  In the case of Natural Born Citizen, the Framers of the Constitution saw it necessary to ensure that the Commander in Chief of our armed forces is not struggling with foreign loyalties.  An American President needs to be purely American.  Foreign allegiances could alter his decision making in a manner that could be detrimental to the common defense of the United States.  Allowing naturalized citizens, or non-Natural Born Citizens to become President would also enable a foreign tyrant intent on gaining control of the United States to simply do as someone like Hitler did (remember, he was Austrian, not German) and walk in, gain popularity, and turn the nation upside down.

A primary concern during the time period the Constitution was written were Tories, a name given to those that were holding on to their allegiances to Great Britain.  During the American Revolution, more than a third of the population disagreed with the drive for independence.  They actively stood against the patriots fighting the war, and pledged their allegiance to the mother country across the Atlantic Ocean.  After the War for Independence was finished, most of those folks returned to Britain, but many remained in the States.  The British Empire did not recognize American Sovereignty after the war, and the War of 1812 wound up being America's Second Revolution.  The men that supported independence were seen as traitors by the British government, and when the White House was burned down during the War of 1812, if President James Madison had been captured, he would have been hung for treason against the empire.

The Tories in the United States worked actively to compromise American efforts, and American politics, infiltrating the government to move the system back into the fold of the British Empire.  During the Constitutional Convention in 1787, the delegates understood the problem with the Tories, and wanted to make sure Tories weren't eligible to gain control of the executive branch.  Since most Tories had at least one parent that was British born, the answer was clear.

The definition of both parents being American Citizens at the time of birth would likely protect the country from any Tory gaining control of the American government, and was consistent with international standards of political law.  Benjamin Franklin owned three copies of Vatell's Law of Nations, one for his own use, and two for the 1787 Convention.  George Washington also had a copy, though it had been borrowed from the New York Public Library, and not returned until 2010.  In Vatell's Law of Nations, Section 212, Natural Born Citizen is addressed, confirming the American definition.  The Immigration and Naturalization Act of 1790 clarifies the same, putting on paper the requirement that both parents of a child must have been citizens of the United States during the time of the birth of the child in order for that person to be eligible to be President of the United States.

Vatell's Law of Nations, Section 212 states:

§ 212. Citizens and natives.

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.
Contrary to popular opinion, the Supreme Court has also ruled on Natural Born Citizen, and has echoed the "both parents must be citizens at the time of birth" requirement detailed in Vatell's Law of Nations and the Immigration and Naturalization Act of 1790.  The opinion provided in the 1875 Minor v. Happersett case is as follows:

“Natural Born Citizen” was defined as children born of two U.S. citizens – regardless of the location of the birth. It found: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.”

So, again, I ask, "Was Ted Cruz's father a naturalized citizen by the time Ted was born?"

Ted Cruz's mother was America, but his father is Cuban.  His father is, now, a naturalized American Citizen.  I have heard the senior Cruz did not naturalize until after the Junior Senator from Texas was born, and if that is the truth, Ted Cruz is not eligible.

As for our current President, he's not eligible by his own admission, since his father, according to Barack Obama, was born in Kenya, and was a British Subject (the latter being something that would greatly concern the Founding Fathers, considering their opinion of Tories).

Finally, if one is wondering my opinion of whether or not Ted Cruz, if he is eligible, would make a good President of the United States, my answer is simply, "I am not convinced that a Junior Senator with no executive experience and a tendency to be brash in his political strategies is our best choice for President of the United States.  A successful, conservative State governor, like Wisconsin's Scott Walker, in my humble opinion, is the better choice."

-- Political Pistachio Conservative News and Commentary