By Douglas V. Gibbs
As the 2016 Presidential Election Season enters the final phase of its life, questions regarding the eligibility of Ted Cruz for the presidency have been popping up. I have answered this question a number of times in articles, on my own radio programs, and on other radio programs. But, I received yet another email on this issue, and I thought I might share with you my response.
Here is the question:
Good Morning Douglas,
I have been studying for about an hour and I am still undecided if Ted Cruz is a legal, viable Presidential Candidate. Referring to your book, 14th amendment, etc, I thought Both parents needed to be U.S. citizens. Not only does his situation resemble Obama's, with a mother who is a U.S. citizen, but like the President's father being a foreign citizen, same with Ted's father's citizenship. His is Cuban. Add to that Ted is born in Canada. In the past, the courts, including Supreme, are afraid to go anywhere close to these cases (Mccain) as an example.
I thought the Naturalization Act of 1790, , or the repeal of 1795, or McCarrann Act of 1952 might give Ted some relief, but I am still not very certain. I am not a birther.
Here is my response:
Ted Cruz is a difficult puzzle for me, because of all of the candidates (now that Scott Walker is gone), he's probably the best suited for the position of President of the United States both politically, and from the standpoint of understanding the U.S. Constitution as we enter the final phase of the 2016 Presidential Election. Cruz is not perfect, nor is he ideal, but in a comparison with the rest of the candidates, and setting executive experience and presidential temperament aside, Cruz is definitely the best choice in the 2016 race for President of the United States.
However, as a constitutionalist that supports the original intent of the document, as it was written, I cannot publicly voice my support for Cruz because his eligibility for the position of President of the United States is questionable. As I understand it, when he was born in Canada (which is not as much of a factor as most people think) his father was not a citizen of the United States. And as you pointed out, I explain in my book, 25 Myths of the United States Constitution, to be a Natural Born Citizen, both parents of the child need to be citizens of the country at the time of the birth of the child. This definition is supported by Vatell's Law of Nations, the Immigration and Naturalization Act of 1790, and an opinion by the Chief Justice from the ruling of the 1875 Minor v. Happersett case by the United States Supreme Court. As an added note, Minor v. Happersett is the only time the question regarding Natural Born Citizen has been addressed at all by the United States Supreme Court.
To show the importance of Vatell's Law of Nations to the Founding Fathers, we must recognize that first, Benjamin Franklin purchased three copies of the volume; one for himself, and two for the convention. Second, After the convention, and into his presidency, George Washington checked the book out from the New York Public Library for further study. In an interesting twist, which carries a certain amount of humor since Washington is known for saying "I cannot tell a lie," he never returned the library book, and a copy in his name was not returned to the New York Public Library until recent years.
The Immigration and Naturalization Act of 1790, written only a few years after the U.S. Constitution, stated the following: "And 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."
The plurality of "citizens" at the beginning of that clause reveals that both parents need to be citizens at the time of the child's birth. More interesting is that there is an exception to the question regarding children born to two American citizens outside the United States. Even if the father is a citizen at the time of the child's birth, if he has never been a resident of the United States, the child is still not considered a Natural Born Citizen.
The case of Minor v. Happersett was not intended to solve the question of Presidential eligibility. In fact, the case was in regard to a woman’s right to vote. However, in his written opinion, Chief Justice Morrison Waite decided it was prudent to address "Natural Born Citizen" in the issuing of the Supreme Court’s decision.
He wrote, “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. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words ‘all children’ are certainly as comprehensive, when used in this connection, as ‘all persons,’ and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.”
To understand why the Framers of the Constitution intended the definition of Natural Born Citizen to be that both parents at the time of the child's birth were citizens, it is important that we take into consideration the context of the time period.
A primary concern during the years immediately following the end of the Revolutionary War was that of the 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. The Tories 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 of them 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, by 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, and the power of acting as Commander in Chief. Since most Tories had at least one parent that was British born, the answer to at least a partial solution to the problem 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, bringing us back to the importance of Vatell's Law of Nations.
Therefore, if Ted Cruz's father was not a citizen as the time of his birth, Mr. Cruz is not eligible to be President of the United States. And once we fully understand the eligibility requirements, we also realize that Barack Obama is not eligible to be President by his own admission. However, that all said, if Cruz somehow won the nomination to represent the Republican Party in the 2016 Presidential Election, we must be reminded of an old saying: "The Constitution was not meant to be a suicide pact." If faced with the choice of voting for an ineligible Ted Truz over someone like Hillary Clinton, or Bernie Sanders, who both propose to inflict even more damage on the American System than did Barack Obama, I won't be able to pull the lever for Ted Cruz fast enough.
Douglas V. Gibbs
Director, Center for the Study of the U.S. Constitution
President, Constitution Association
Radio Host, KMET AM1490
Publisher, Table Top News
Author, "25 Myths of the United States Constitution," "The Basic Constitution,"
and "Silenced Screams: Abortion in a Virtuous Society"