It is very likely that the words “natural born citizen” in the US Constitution were prompted by future Supreme Court Chief Justice John Jay in a letter to George Washington around the time the words were added to the draft of the Constitution. What Jay wrote was:
Permit me to hint, whether it would 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. [underlining in the original]
In this brief missive the only contextual hint is that a natural born citizen requirement is something that checks the admission of “Foreigners.”
I’ve written about foreigners before in my article titled “The Framers on ‘foreign influence’” and the interested reader will do well to explore the citations in that article, as I am not going to plow that field again; however, I am going to add a rather important bit of information that I did now know when that article was written about one of the sources in it. Historian and Secretary of the Navy George Bancroft wrote in his History of the Formation of the Constitution of the United States (1884) (Volume 1 Page 346):
One question on the qualifications of the president was among the last to be decided. On the twenty-second of August the committee of detail, fixing the requisite age of the president at thirty-five, on their own motion and for the first time required that the president should be a citizen of the United States, and should have been an inhabitant of them for twenty-one years. The idea then arose that no number of years could properly prepare a foreigner for the office of president; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, the committee of states who were charged with all unfinished business proposed, on the fourth of September, that “no person except a natural-born citizen, or a citizen of the United States at the the of the adoption of this constitution, should be eligible to the office of president,” and for the foreign-born proposed a reduction of the requisite years of residence to fourteen. On the seventh of September, the modification, with the restriction as to the age of the president, was unanimously adopted.
The new information is that Bancroft personally interviewed James Madison, the principal author of the Constitution, and the man whose notes provide much of what we know about the debates in the Constitutional Convention (this was in 1836Note 1). We see again here the idea that a “foreigner” cannot be president. I note the progression: 7 years not a foreigner (House), 9 years not a foreigner (Senate), all years not a foreigner (president). And the fact that begs us to look and take notice, is that the 14-year residency requirement here is “14 years” for the FOREIGN BORN!
To exclude anyone from the presidency according to originalist intent, they must be a foreigner, and to conclude that “natural born citizen” excludes foreign-born US citizens at birth requires labeling them as “foreigners” in the eyes of the Framers. Can anyone make that case?
H/t to Dave B.
1In his preface to the new work Mr. Bancroft says that hope of writing such a book was conceived many years ago. It must have been long after he had begun work on his “History,” for he says that in 1836 he paid a visit to Madison, the aged statesman being then nearing his end, and obtained from the privilege of examining the letters ha had written in the early part of his career, together with the valuable manuscripts in his possession of the debates in Congress and in the Constitutional Convention. At that time, says Mr. Bancroft of the venerable statesman, “his health was still so firm that he could pass the while day in conversation. He had taken pains to recover the letters written by him in his earlier public life; these he set before me, as well as his manuscripts of the debates in Congress and in the Convention. At my departure he assured me that he had carried his confidence with me further than he had done with any one….
Appleton’s Literary Bulletin, Volume 1. June 1882.
So, like all things Ted Cruz, this is confusing. I can read this and say that Ted Cruz was born to an American mother and has lived in the U.S. since he was a child and thus he would not be considered a foreigner… and someone can read that completely differently and conclude he is.
Is there any definitive way to read a summary on the citizenship of Ted Cruz? It all seems so murky when it should simply be that he had an American mother. It seems that simple, is it more complicated than that?
I don’t understand.
Doesn’t the phrase “for the foreign-born proposed a reduction of the requisite years of residence to fourteen” imply that presidents may be foreign-born?
Whether a foreign-born US citizen at birth is a “natural born citizen” is a murky issue. There are a number of approaches, leading to different answers:
If “natural born citizen” means someone who meets the English Common Law criteria for a natural born subject, then Cruz is not one.
If “natural born citizen” means someone who meets any criteria for an English natural born subject under English Law in 1787, then Cruz is eligible.
If “natural born citizen” means a person born with the nature of a citizen, then Cruz is eligible.
If “natural born citizen” means what Emer de Vattel described as an indigènes of France, then he is not a natural born citizen.
If “natural born citizen” means a citizen who is not naturalized, then Cruz’ eligibility depends on whether US citizens at birth born overseas are naturalized or not.
Bless you!
We’ve been working under the assumption that Cruz is eligible and now that may change? Do we see SCOTUS deciding this decision? Mitch McConnell says he will not allow a bill through the Senate that would verify Cruz’s eligibility.
Some Constitutional Law experts are saying SCOTUS has already decided that laws are decided upon English Common Law. I’m not sure how they come to that conclusion, what is th consensus here on that? (I don’t trust anyone’s opinion on this stuff anymore without running it by the legal experts here (of which I’m only a spectator here with no legal training.)
I have been working under the assumption that MOST authorities say Cruz is eligible, and this is what the news media is reporting, and this is what Donald Trump says that the lawyers he talked to say. This is what the CRS report from 2011 said. However, a few voices are taking the other side. It is not a “done deal.” The only way the Supreme Court is going to rule is if someone with standing files a lawsuit against Cruz, and the Supreme Court takes the case–and I could hardly imagine them not taking it if it came to them since it is a novel problem, without precedent, and of national importance.
Given the recent doubts, I don’t think the 2011 report is still accurate in that regard.
It is also very unlikely that SCOTUS will hear a Cruz case unless a lower appellate court keeps Cruz off a ballot. (If Cruz is on the ballot but isn’t the nominee, the issue becomes moot. Which is why Trump prefers the court of public opinion over an actual court.)
Thank you Doc. I’m just amazed how much traction these naysayers are getting. Personally, I couldn’t stomach a Cruz presidency, but I still believe he’s eligible.
Presidents could have been foreign-born if they were grandfathered – i.e., citizens of the United States at the time of adoption of the Constitution, such as Alexander Hamilton. I believe that is the only thing that phrase is referring to.
I too have felt all along that Cruz is eligible, but I’m having second thoughts.
Constitutional Law professor Mary Brigid McManamon, who wrote an op-ed in the Washington Post yesterday arguing that Cruz is not eligible, made an interesting point during an interview tonight. She said that Cruz is indisputably a U.S. citizen, because acts of Congress say so. However, she also says that the only power over citizenship that the Constitution gives to Congress is “the power to establish a uniform Rule of Naturalization” in Article 1, Section 8. In her opinion, Congress has the power to create naturalized citizens, but not to change the definition of natural-born citizen.
Professor Laurence Tribe, perhaps the most respected Constitutional scholar in the country, also has his doubts. He said this on Monday evening:
“But at the time of the framing, they [the Framers] weren’t so interested in who your parents were. They were interested in whether you had a connection to the land. The focus was really on whether you were born on American soil. And the fact that they had all these laws passed over the years to say that some people, by grace of Congress, don’t have to get naturalized, has nothing to do with the meaning of natural-born citizen. The idea that the Constitution waxes and wanes, and that the meaning of this clause depends on what the latest Congress has said about immigration and naturalization, is completely at odds with the firm position that the Framers took about this.”
Tribe is essentially saying that at the time this country was founded, Cruz would not even have been a citizen at birth, so how can he now be a natural-born citizen?
I disagree with the McManamon’s point on Congress’ power of naturalization. Madison was a member of Congress who passed the 1790 naturalization act that specifically said foreign born children of citizens were NBC.
I went back and forth on this question several times before arriving at my current position. And if I want to challenge myself, I just have to pull out one of the citations ballantine left us:
“As the President is required to be a native citizen of the United States…. Natives are all persons born within the jurisdiction and allegiance of the United States.” James Kent, COMMENTARIES ON AMERICAN LAW (1826)
If the issue was easy, I wouldn’t have written just shy of 60 articles on the topic:
http://www.obamaconspiracy.org/tag/natural-born-citizen
One I thought was particularly clever was this one:
http://www.obamaconspiracy.org/2013/11/rawles-therefore/
My view is that there is no record of any controversy in the passage of that Act, and it would’ve been crystal clear in 1790 that declaring such children “natural born citizens” meant they would be eligible to the Presidency.
Nor is there any record that anyone thought Congress was acting outside of their authority to make such a declaration.
Then again, Trump also said he talked to his “investigators” in Hawaii and that they “can’t believe what they’re finding”, so Trump claiming anyone said anything is pretty much meaningless as he obviously makes stuff up as he goes along, or changes his stories as it fits his current narrative.
When he starts seeing Cruz as his main rival, he will gladly claim his lawyers have always said Cruz isn’t eligible.
That was probably the birthers’ last and logically worst retreat, to claim that such people would be NBC but “not for the purpose of eligibility”, thereby creating yet *another* subset of citizens (“natural-born but not eligible to be President”). *smh*
I suppose one could argue that the Constitutional “natural born citizen” was a term of art referring to the English Common law, and the 1790 Act used the common usage definition of citizen from birth. But that solution violates the principle that the definitions in the Constitution were selected to be understood by a well-informed voter.
Or English Common and Statutory law.
“It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution. We shall seek in vain for any antecedent settled legal meaning to the respective terms—there is none.” Alexander Hamilton, 1795
That’s a good point. If it was understood that children of citizens born abroad were natural born citizens, why the need to address it in the 1790 Act?
Imagine how much simpler it would have been if Congress had amended the Constitution in 1790 to clarify the issue, as was later done with the 14th Amendment.
Cruz is not eligible. To be a natural born American you must be born in America. It doesn’t matter if your parents are citizens or if you only have a mother and unknown father.
Why else would the US Constitution, Article II, Section 1 state:
“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution.”
I read it as saying… From this day forward anyone that can be President must be born in America… and just for this instant in time at ‘the adoption of this Constitution.” a citizen of the United States” is also qualified… since there are no natural born American citizens as of yet.
A child born in the United States after “adoption of this Constitution” is a “natural Born” citizen whether or not the parents were citizens or not.
A child born outside of United States is not “natural born” even if the parents are US citizens… the child is just a citizen… otherwise, two categories of “citizen” would not be noted…..
One must be born in the United States in order to be qualified to be President.
Birthers have sometimes argued that there are three types of citizens: natural-born citizens, citizens, and naturalized citizens.
That’s your opinion and a good argument can be made for your position however there is another school of thought that anyone who is a citizen from the very moment they were born is a natural born citizen. The legal scholars seem to be split on whether citizens born abroad to one or two US citizens is a natural born citizen. Persons have run before with those circumstances. For example George Romeny in 1968. He wasn’t challenged but some legal scholars noted his birth in Mexico could be an issue. Romney bowed out early in the primaries.
What do you suppose was the school of thought of the founders?
Isn’t it a given that the founders were determined to exclude a moneyed foreigner from being able to hold the office?
But do we know how Madison voted or if the vote in both Houses was unanimous? Whenever people speak to “the Founders” I always ask “Which Founders?” There was precious little that the Founders were in unanimous agreement on. The third Vice President who tied for president in 1800 and needed 36 rounds of voting in the House to be defeated by Jefferson, eventually shot and killed the Founder who he held ultimately responsible for his defeat, even though they were both Federalists
I was reading one scholarly paper on the subject. The author referred to the laws passed by Congress with regards to birthright citizenship as “naturalization acts” even though he then went on to say that they decided whether or not a person was a natural born citizen by way of birthright citizenship.
I’m also not quite sure why they call it “naturalization”. Anyone know the original of the word? It seems like such an odd word when we have the phrase “natural born”.
Two things to also consider, is a few short years later, Congress amended that statute, dropping the “natural born citizen” language from it. A correction perhaps? And let’s also remember, this was before the Supreme Court flexed its interpretive muscle in Marbury v. Madison, and pretty much dropped the gauntlet that Congress is bound to pass legislation within the scope of the Constitution (keep in mind, in the English system, Parliament has no such limits), and the Court is the one who keeps Congress in check in this matter….and on a related note, I’m guessing Congress thought their actions leading up to Marbury v. Madison was fine too, so just because they did it, doesn’t automatically mean it was well thought out and Constitutional.
Yes, but anyone who was born abroad a citizen and meets the residency requirements to be presidency isn’t a “foreigner”. They would be as much an American as you or I.
The consensus is that the NBC clause was inserted at the last minute because they were wary that one of the European nobles of the day might come over and buy their way into office. Remember when the Constitution was drafted the US was moving from an extremely weak federal government to one with some teeth because the loose association of the states was failing badly. I am sure some of the delegates were uneasy about creating a new executive position with power over the army and navy. The NBC clause might have been a bone thrown to the doubters.
Yes, a citizen and as American as you or I, but not natural born like me… and a citizen is eligible only if they were one “at the time of the adoption of this Constitution.”
I too believe the school of thought of the founders added the NBC clause due to fear “of the European nobles of the day might come over and buy their way into office.”
Yes, of the day…in that point in time, travel to America was a months long arduous journey and the requirement to be born in and meet the residency requirements to be President were included to make it as difficult and costly as possible to meet those requirements…
It doesn’t work in todays world. The “founders” never dreamed the oceans could be crossed in a matter of hours, which enables anyone 8.99 months pregnant and can afford the nominal cost can pump out a natural born American…..
They also never considered the comma’s in the 2nd amendment would make a difference to how it was read then and how it’s being read today and the automatic “arms” with high capacity magazines… despite having a standing citizen army.
Is it a living document or is it written in stone.
Was it or was it not the intents of those who wrote the Constitution that presidents be born in this country?
I’ll say yes… I’ll also say they didn’t want everybody to be able to get as many guns that can fine 100’s of rounds per minute just because they want them.
I cannot find a record vote on the 1790 Naturalization Act. But i do find that of 24 Senators when the law was passed 14 of that number were lawyers or a former judge. This includes eight of the 10 framers of the constitution in that body. The House numbers are somewhat less lopsided, though almost half were lawyers. The point is that these guys above all others should have lnown what they were doing when they declared that a certain class of people should be considered natural born citizens. And it stretches credulity that this law created natural born citizens but NBCs ineligible for the presidency. This would give us, what, four classes of citizen: naturalized, born a citizen but not natural born, natural born but not eligible for the presidency, and finally, natural born AND eligible for the presidency?
I still don’t buy your argument. Even if you are right a person could be born in the US and be taken immediately to another country to reside until they were age 21. If they then move back to the US at age 21 on their 35th birthday they are eligible to serve.
Yet you claim someone born in Canada while there parents are there on a work assignment or serving in the military and then is returned the week of his birth, lives his entire life in the United States is not eligible to be president upon reaching age 35.
I’m aware of the article, she’s from Widener University (what used to be called Widener College when I lived in that area.) I read it, and i personally think she’s being dismissive of other evidence. What I hear her saying is exactly what I’m hearing from the media now (variations of “of course they meant born in the United States, what else could they mean?”) The Common Law issue of American citizenship was revisited and I’m not convinced – otherwise, I think U.S. Code, Title VIII, Section 1401 would be written differently. Only SCOTUS can clarify this.
Cruz sued in Texas over eligibility.
It seems obvious that there’s no such thing as “natural born but not eligible for the Presidency,” unless it’s due to a different disqualification (e.g., not yet 35 years old, not 14 years a resident.)
This seems to me pretty much of an absurdity. I don’t think the Framers intended such an absurd result.
No standing. Case dismissed.
I read the recent scholarly article. While there may be some room for criticism here and there, it seems to me that the main point is probably sound:
The English law and precedent the Founders were following was not restricted to the common law; it was the common law as modified from time to time by statute.
By “natural born citizen,” they meant the core common law definition of “natural born subject,” except for the (minor) difference between “citizen” and “subject,” and as it it might be modified from time to time by Congress, whose authority in this regard extended to defining which children of United States citizens, born abroad, were to be included as US citizens at birth/ US natural born citizens.
Not on PACER yet.
I’ll buy an argument that the First Congress could foresee the future, but I think one is skating on extremely thin ice to call them careless.
typo “their parents”…
I agree Pete. The British definition of “natural born subject” had been around all the delegates lives. If they wanted to change the definition of “natural born” they would have put it in writing somewhere.
If the “foreign influence” issue was so monumental why was it hardly discussed and thrown in at the last minute? According to the Birther nonsense you would think the presidential qualification clause was the most important clause in the Constitution. That’s just silly.
So we have another pro se nobody filing a case? Until a real candidate files something the Cruz birthplace issue it only fodder for Internet blogs, the debates and the 24/7 news channels.
http://www.bloomberg.com/news/articles/2016-01-15/cruz-s-natural-born-citizen-status-challenged-in-birther-suit
‘The case is Schwartz v. Cruz, 4:16-cv-00106, U.S. District Court, Southern District of Texas (Houston).
Well, the Bill of Rights wasn’t added until after adoption, and look at how many cults have formed around various amendments and parts thereof.
It’s like the parable of The Blind Men and the Elephant: “It’s plain to see the Constitution is primarily a bulwark against foreign influence/gun restrictions/censorship/prayer in schools/cattle grazing fees/socialized medicine/…”.
Of course: the Giant Conspiracy to Protect the Usurper™ must be maintained at all costs.
Or Obama established a precedent that ineligible candidates can’t be challenged.
Or the judges must all be witches because they float.
Or something…
My bad, Schwartz is an attorney. He apparently has a colorful history and is banned from practice in at least two states, Louisiana and Pennsylvania. Standing is going to be an issue for him. .
We Have Our First Lawsuit Over Ted Cruz’s Eligibility — And It’s A Doozy
The lawsuit cites recent analysis by Harvard Professor Laurence Tribe — as well as concerns raised by C-SPAN callers and by Donald Trump — that Cruz is not natural born. The rambling 28-page complaint brings all sorts of seemingly unrelated issues, including the Texas abortion case the Supreme Court will hear in March, the case it recently heard on public unions’ fee structures and Texas Gov. Greg Abbott’s call for a Constitutional Convention.
“No previous case has been presented or decided on this issue by the U.S. Supreme Court, including because in fact none arose, as here to being a case or controversy ripe for decisions as here is presented,” the complaint said. “The entire nation cannot afford such constitutionally confusion and uncertainties overhangings the electorate process.”
read the complaint:
http://talkingpointsmemo.com/livewire/cruz-lawsuit-birth-challenge
TPM (as expected) got it wrong (as did Schwartz): It is the third lawsuit (Paige’s in Vermont, Voeltz’s in Florida). And there were also the New Hampshire ballot challenges.
Standing depends on how the lawsuit is framed. If it’s a ballot eligibility challenge, some states permit any resident to file suit. In others you must be a member of the political party of the person being challenged
Schwartz filed a lawsuit (not a ballot challenge) and in it argues that all voters have standing. An argument that has never worked for an eligibility lawsuit.
The Supreme Court would be quite justified in staying out and allowing Congress to decide. Per the 20th Amendment: ” or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified”. That language suggests that Congress is the judge of whether a President elect is qualified (which should include eligibility). That doesn’t mean the Court would stay out, but they certainly could justify doing so.