Whether you think it’s a legitimate issue or not, Donald Trump has gotten everyone questioning whether Ted Cruz is eligible to serve as President of the United States based on the constitutional requirement that the president is a “natural born citizen.” Legal scholars write similarly convincing opposing arguments over how to define this constitutionally vague term. These are lengthy stories, but they’re both worth the read to fully grasp this issue. It will help you when you’re watching the debate later and this topic inevitably comes up.

Here are two views, both from constitutional law professors at respected universities, which differ on whether Ted Cruz is eligible under the constitution.

First, the opinion from Akhil Reed Amar, constitutional law professor at Yale University, who believes Cruz is eligible:

Elsewhere, Article I, section 5 of the Constitution makes clear that each house of Congress may “judge” whether a would-be member of that house meets the constitutional eligibility rules for that house. Suppose Mr. Smith wants to go to Washington as a senator. He wins election in his home state. But the Constitution says a senator must be 30 years old.

If a dispute arises about Smith’s age, about whether there a proper birth certificate and what it says, the Constitution clearly says the Senate is “the judge” of Smith’s birth certificate dispute.

Similarly, for presidential elections the Constitution’s structure makes Congress the judge of any birth certificate dispute or any other issue of presidential eligibility. Congress cannot fabricate new presidential eligibility rules but it is the judge of the eligibility rules prescribed in the Constitution.

Thus, ordinary courts should butt out, now and forever. They have no proper role here, because the Constitution itself makes Congress the special judge. In legal jargon, the issue is a “nonjusticiable political question.”

So the question is, was Ted Cruz born a citizen? The Constitution says, in the 14th Amendment, that anyone born in the United States and subject to our laws is a U.S. citizen. Today, that means everyone born on American soil except children of foreign diplomats — even children whose parents are not themselves U.S citizens. Donald Trump, are you listening?

Unlike Barack Obama, who was born in Hawaii — again, please pay attention, Donald! — Cruz is not a citizen at birth because of where he was born. Cruz was born in Canada. But neither Article II nor the 14th Amendment says that only those born in the United States are birth citizens. The 14th Amendment says that birth on American soil is sufficient to be a birth citizen. But it is not necessary. [Emphasis added]

How else can a person be a citizen at birth? Simple. From the founding to the present, Congress has enacted laws specifying that certain categories of foreign-born persons are citizens at birth. The earliest statute, passed in 1790, explicitly called certain foreign-born children of U.S. citizens “natural born citizens.” It did not say they should be treated “as if” they were “natural born citizens.” It said they were in law deemed and declared to be “natural born citizens.” Congressional laws have changed over the years, but this 1790 law makes clear that from the beginning, Congress by law has the power to define the outer boundaries of birth-citizenship by conferring citizenship at birth to various persons born outside the United States.

Amar’s argument boils down to the fact that congress ultimately is the legislative branch, and they determine what it means to be a citizen. In this case, current law made Cruz a citizen from birth. Therefore, Amar concludes, he is eligible to serve because congress, using the authority it has, deems him eligible.

Now, for the other side of this coin. Mary Brigid McManamon, constitutional law professor at Widener University’s Delaware Law School, takes an opposing view arguing that Cruz is not eligible to serve as president:

Donald Trump is actually right about something: Sen. Ted Cruz (R-Tex.) is not a natural-born citizen and therefore is not eligible to be president or vice president of the United States.

The Constitution provides that “No person except a natural born Citizen .?.?. shall be eligible to the Office of President.” The concept of “natural born” comes from common law, and it is that law the Supreme Court has said we must turn to for the concept’s definition. On this subject, common law is clear and unambiguous. The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are “such as are born within the dominions of the crown of England,” while aliens are “such as are born out of it.” The key to this division is the assumption of allegiance to one’s country of birth. The Americans who drafted the Constitution adopted this principle for the United States. James Madison, known as the “father of the Constitution,” stated, “It is an established maxim that birth is a criterion of allegiance. .?.?. [And] place is the most certain criterion; it is what applies in the United States.”

Cruz is, of course, a U.S. citizen. As he was born in Canada, he is not natural-born. His mother, however, is an American, and Congress has provided by statute for the naturalization of children born abroad to citizens. Because of the senator’s parentage, he did not have to follow the lengthy naturalization process that aliens without American parents must undergo. Instead, Cruz was naturalized at birth. This provision has not always been available. For example, there were several decades in the 19th century when children of Americans born abroad were not given automatic naturalization.

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. [Emphasis added]

Let me be clear: I am not a so-called birther. I am a legal historian. President Obama is without question eligible for the office he serves. The distinction between the president and Cruz is simple: The president was born within the United States, and the senator was born outside of it. That is a distinction with a difference.

McManamon takes a very literal interpretation in that anyone who is born outside the United States, except for someone born on a US military base, cannot by definition be a “natural born citizen.” Therefore, barring a change to the constitution, Ted Cruz cannot be eligible regardless of what congress says or does with regard to granting citizenship.

There’s no doubt that Trump brought up the issue at this point out of political opportunism given the close race in Iowa. However, depending on who you ask, he’s not wrong for asking the question. How deep this topic gets explored at the debate tonight will be interesting to watch.

28 COMMENTS

    • But this is not about “citizenship.” It’s about presidential eligibility. That is, you can be a “citizen”at the age of 34, but you can’t be president.

      We had a voluminous discussion about it regarding Obama’s eligibility a couple years ago. It got down to the intent of the Founders, and their understanding of the phrase “natural born,” which is a very odd construction.

      Turns out, it was in a book written by a French author, which was well known by the Founders. That book defined “natural born” as being fully drenched in the civilization. The author thought that only someone who was a lifelong resident–AND his or her parents were lifelong residents–should be allowed to lead a nation.

      I guess it depends on whether you’re a strict constructionist, or figure anything goes.

      • well, your simplistic constructionist vs “anything goes” dismissal aside the link i provided puts forth a good argument in favor of cruz’s eligibility. for those interested in additional, and well researched, legal opinion.

        • The link you provided is legalize nonsense — nothing else.

          The framers of the US Constitution wanted the assurance that any US President is to be naturally born: meaning born in this country by parents that are both US Citizens.

          Even though not specified then, it should be understood by now (since they never envisioned Foreigners claiming to be Americans to be allowed to run for the US Presidency) — the Framers of the US Constitution intent is clear, and thereby, unimpeachable.

          Having even a single parent that is not a US citizen prior to birth of candidate, precludes said candidate — since that parent has an allegiance to a foreign nation. Thus, may influence the child born to foreign agenda!

          Prime example is Barrack Hussein Obama — who wrote a book about how his Kenyan father influenced his world view!

          Therefore, Obama, Cruz, Rubio are all unfit to be US Presidents.

          • You draw conclusions and make your assertions based on an assumption of what you claim the framers were thinking, rather than take the law at face value. Furthermore I’ll repeat my earlier statement there are only two distinctions of citizenship: natural-born (naturally-born) and naturalized. If the founders wanted a subset disqualifying those with a parent who was not a citizen I think them smart enough to have included it. Cruz is not a naturalized citizen.

            As for Obama’s influence of his scumbag father; it is irrelevant. It implies that if Obama’s father took the oath of citizenship prior to Obama’s birth he would cease to hold anti-American views. Talk about nonsense.

            Finally, as for your smear of “legalize nonsense… nothing else” I’ll take the well fleshed opinion of a legal scholar over your weakly argued dismissal.

          • The Constitution requires that the President of the United States must be anatural born citizen: Article II, section 1, pa. 5: “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.”

            If “natural born citizen” is a synonym for “citizen,” then there is no reason for adding the exception “or a Citizen of the United States, at the time of the Adoption of this Constitution.” None at all. Being a citizen is not sufficient, unless you happened to be alive when the Constitution was adopted.

            So what, then, is a “natural born citizen”? To answer that question definitively will require a full examination of the concepts and history of citizenship.

            Types Of Citizenship: Jus Soli, Jus Sanguinis, Natural Born, Native Born, Naturalized

            Jus soli citizenship: “Jus soli” is a Latin phrase meaning “law of the soil.” Jus soli citizenship is any citizenship that inheres in a person based on the location of his or her birth.

            Jus sanguinis citizenship: “Jus sanguinis” is a Latin phrase meaning “law of the blood.” Jus sanguinis citizenship is any citizenship that inheres in a person based on his or her ancestry.

            Native born citizenship: A native born citizen is one whose citizenship derives from the facts of his birth, and who becomes a citizen at the moment of birth. In both US and British law, those born within the sovereign territory of the country or born to parents who are citizens (subjects) of the country when the person is born are native citizens (subjects.) Native born persons are said to have “birthright citizenship.” Note that one can be “native born” either by the “jus soli” principle or by the “jus sanguinis” principle.

            Naturalized citizenship: A naturalized citizen is one whose citizenship is granted by statute or by the decision or act of a sovereign.

            Natural born citizenship: A natural born citizen is one whose citizenship is beyond dispute, not synthetic, not subject to conflicting claims, not granted by statute or by any act of a sovereign, but inheres naturally in the person according to principles that don’t depend on laws or decisions of a sovereign. [The rest of this essay will fully justify this definition]

            The 14th Amendment created an implicit distinction among 14th Amendment native-born citizens, and statutory native-born citizens. A 14th Amendment native-born citizen is any person who (a) was born in the United States, and (b) was subject to U.S. jurisdiction at the time of his or her birth. In contrast, a statutory native-born citizen is a person who does not qualify for birthright citizenship under the 14th Amendment, but receives U.S. citizenship, at birth, by laws enacted by Congress. For example, foreign-born children of American parents do not receive citizenship from the 14th Amendment; such children acquire U.S. citizenship, at birth, by statute.

            So those born outside the United States to parents who are US citizens at the time of the person’s birth are both native citizens and also naturalized citizens, since their citizenship is a) granted to them by an Act of Congress (based on Congress’ Constitutional authority “To establish an uniform Rule of Naturalization,”) and b) effective from the instant of their birth, based on the fact that the person’s parents were US citizens at that moment. Similarly, it is necessary to distinguish between Constitutional andstatutory natural born citizens:

            “Constitutional natural born citizen” refers to the term “natural born citizen” when it appears in the Constitution or in a Constitution-related document such as a Supreme Court decision. It refers to the meaning of “natural born citizen” in the Constitution.

            “Statutory natural born citizen” refers to someone who is deemed a “natural born citizen” by Federal or State law.

            These distinctions are not my invention. The U.S. Department of State Foreign Affairs Manual—7 FAM 1130 (page 9) says:

            …the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes

            If we were to define “natural born citizen” to mean anyone who is a “citizen at birth”, our definition of “natural born citizen” would be statutory because it would depend on the statute or law which defines “citizen at birth”. Under existing law, all children born in the United States (except the children of foreign diplomats) are “citizens at birth”. Therefore, under existing law, almost all children born in the U.S.—including children of illegal immigrants—could be regarded as statutory natural born citizens. This is just part of an article that breaks it down anyone interested could read the entire article …. google Excellent Article on Natural Born Citizenship and Lots of related bits

        • Your link has nothing to do with the Article II, Sec. 1, Clause 5 specific requirement that a President of the United States be a “natural born citizen”.

          ONLY ONCE in the US Constitution is the term “natural born citizen” used, and only as a requirement for presidential eligibility.

          THE ONLY definition of “natural born citizen” ANYWHERE in US case law or statute comes from the US Supreme Court* which defines (and confirms in a later ruling) the term as a native birth to two citizen parents.

          With the exception of the US Presidents alive at the time of ratification (all of whom were born on what was to become US soil), all subsequent presidents have been born in the United States.

          This was THE ONLY criteria the US Senate used in 2008 when they issued a Declaration of Eligibility for John McCain that read (in part):

          “Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now, therefore, be it

          That John Sidney McCain, III, is a natural born Citizen under Article II, Section 1, of the Constitution of the United States.”

          https://www.govtrack.us/congress/bills/110/sres511/text

          Finally, there is a REASON why Mitch McConnell, on behalf of the US Senate (there have been no dissensions!), has preemptively announced that Cruz needs to look elsewhere for a ruling on his eligibility.

          Again, there is no doubt here. “Ted” Cruz is simply NOT eligible to be president.

          * Minor v. Happersett, 88 U.S. 162 (1875), United States v. Wong Kim Ark, 169 U.S. 649 (1898)

          • As usual, “Hillary” thinks you’re “spot on” simply because he agrees with you. I am leaning toward your side of the argument, and agree that you’re “erudite,” but your argument, here, is hollow, not “superb.”

            You rest your argument on two points:

            (1) A simple resolution from Congress, relating ONLY to McCain. And, let’s remember that it is the Supreme Court that must decide what the Constitution means. not Congress, late on Thursday, in April.

            (2) The Supreme Court case you do cite, Minor v. Happersett, is also irrelevant. The actual text discusses “naturalization,” but makes no reference to “natural-born.” It is just the talking heads who claim that it, you know, probably “means” that.

            We have been discussing this issue for years, here, but in this thread, while I am more on your side, I think the other side has done a better job of making its argument. Try again.

            • P.S. I think, if the case had been raised, the Court may have disqualified Obama, as well. But since the issue was not raised in the courts, it is moot.

              The Court may have decided against Kennedy in 1960, but the issue wasn’t raised. And the Court may have decided for Gore in 2000, but the Court doesn’t like to decide such things after an election. Trump was wise to bring it up now, and at least one suit has already been filed against Cruz.

          • Read para 10 it is an appeals court definition of Natural Born Citizens – it is the current legal precedent.

            http://openjurist.org/700/f2d/1156/diaz-salazar-v-immigration-and-naturalization-service

            Here is the Birther court records which with the 3 recent dismissals the score is 229 lost and 0 won,

            http://tesibria.typepad.com/whats_your_evidence/BIRTHER%20CASE%20LIST.pdf

            You can argue but you have no facts on your side Even Vattel has been debunked as a bad translation and the one with the birther 2 parents was not published until 1790?

  1. IMO… the law on citizenship should be better defined. A child belongs to it’s parents… no matter where the child is born… it belongs to it’s parents… therefore place of birth SHOULD be IRRELEVANT. A child should be a citizen of the country of the PARENTS current citizenship no matter where it is born. A child could hold duel citizenship if the mother is from a different country than the father. This way there would be no babies born without a country (on open seas… in undeclared airspace…) ALSO there would be no baby mamas trying to get back door treatment to citizenship. AND we would not be debating this issue when it comes to presidential nominees. IMO… a nominee’s parents BOTH should be born in the USA as well as the child (unless born during documented vacation travel…) Neither the parents nor the child could ever hold citizenship in any other country for any reason… and still be eligible. that should cover the loyalty to the USA issue. Y’all can argue this all you like… I don’t care… it is what it is… but this would stop a lot of illegals from crossing the border to deliver their babies on USA soil. it would end USA needing to find foster homes for these babies while their Mom’s are being deported…

  2. I am neither Republican nor an attorney, but this issue should be put to rest.

    I did a quick search and I think the Blackstone commentaries of 1765 pretty much clarifies that if you are born outside the country where your parents are citizens, then you are still considered to be a natural-born citizen of the country where your parents are citizens. This would apply to Americans, as our law is based on English Common Law. I think the confusion is coming from the definition of ‘natural born’, which is why it is important to reference Blackstone. Ref: http://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships1.html

  3. In every other country, citizenship is defined by parentage, not birthplace. To me, it is defined by how and where you were raised. Children born in other countries and raised on Army bases are still full natural-born citizens. Anyone born in America, but raised in other countries that hate America and our way of life, AND adopt citizenship there, could hardly qualify for natural-born American, can they?

    • We have been arguing this issue, on here, for years.

      If you want to make up your own definition of “natural born,” that’s fine. For instance, you could focus on “natural,” and say that anyone is “natural born” who was not delivered by Caesarian section.

      But the question is, what did the Founders think it meant, and does their intent matter?

  4. Further reasons (aside being a Canadian by birth, and his Goldman Sachs wife) why Ted Cruz is unfit to be US President:

    1) Ted Cruz Didn’t Report Goldman Sachs Loan in a Senate Race

    http://www.nytimes.com/2016/01/14/us/politics/ted-cruz-wall-street-loan-senate-bid-2012.html?_r=0

    and

    http://www.newyorker.com/news/john-cassidy/ted-cruzs-goldman-sachs-problem

    2) Beholden to Goldman Sachs — no wonder Ted Cruz said to American Citizens: “If you won’t stand with Netanyahu and the foreign state of Israel, I, Ted Cruz, won’t stand with YOU — American Citizens”!!!

    Here are sell-out-to-Israel-Ted-Cruz’s own words (make this 1 minute video viral):

    https://www.youtube.com/watch?v=YOOZ6aPooSk

    • Your attempts to help Paul by attacking Cruz won’t work. How many people read crap on here anyway…..5 ? 10 ?
      Just because Paulbots like yourself are upset that he will fail like his daddy before him did won’t change anything.
      If you REALLY cared about Paul, you would be out knocking on doors for him, making phone calls for him or doing ANYTHING BUT being HERE.

  5. YAHWEH-God of Israel has our escape. Money is not our savior, it is an obstacle.
    Weapons and troops are not our escape; they block understanding on all sides.
    God has solutions. His written wisdom in the Torah and Gospel and what is written in the Qur’an alone can bless the mess that we have created by ignoring YAHWEH’s wisdom.

    We have FOUR ineligible presidential candidates for 2016. Two are recently added to our understanding:
    Donald Trump’s mother was not born in America; she was born in Scotland.

    “Sanders was born in Brooklyn, to Dorothy (née Glassberg) and Eli Sanders.[21][22] His father was a Jewish immigrant from Poland whose family was killed in the Holocaust.” Wiki.

    IF Ted Cruz, Marco Rubio, Bernie Sanders or Donald Trump are elected we lose our power to overturn the damage done by President Obama’s far reaching and anti-constitutional policies.

    PROOF PRESIDENT OBAMA AND CONGRESS KNOW HE IS ILLEGAL 7-24-11
    YouTube President Obama Set Up by Congress though No Natural
    Born Citizen
    http://www.youtube.com/watch?v=H3aCfR8rmrw&feature=player_embedded
    ****(Statement by Pres. Obama and Hillary Clinton testify in court about
    needing 2 Natural Born Citizen parents.)

    ****Written information of above YouTube, easier to share:.
    http://www.divine-way.org/proof_president_obama_and_congress_know_he_is_illegal.html

    • Marie, yes, YouTube is a great source for factual information. In fact, everything you read or see online anywhere is factual. You really have it going on baby. (Sarcasm off ).

      • WOW; just like the newspapers and news channels. That is why the Bible tells us to test all things; and to watch so your house is not broken up by the thief in the night who can be a deceiver on any media. Thanks for caring for me.

  6. You know you look at who the candidates are, and it’s overwhelming.. First of all the Republicans, most are just not normal people, filled with hate and bias. the hill, you really have to worry about her background, and you really have to worry about her being convicted, and if you think thats not going to happen, your seriously mistaken. The Justice Department will prosecute her. They can’t not do it. The democratic party is splitting, and the only candidate that is honest with the voters, who is responsible only to the voters is Bernie. Like it or not, he’s the only one you can put your trust in. Cruz cannot meet the criteria, when you look at the Canadian records his mother and dad were both required to become Canadian citizens before he was born in 70, they had a business, paid Canadian taxes. listed on a 74 voter census as citizens of Canada, there was no, and I repeat.. There was no.. NO…NO Dual Citizenship in 1970.. NONE.. From 1945 – 1974 no one had the option of dual citizenship, So, he was a Canadian at birth, born to two other Canadian citizens. Thats not too difficult to understand now is it. He has hoodwinked people into thinking his mother had options.. she didn’t, he doesn’t. I have found a video tape he orchestrates her conversation with the media. This country needs healing, and we need to rebuild, to increase our incomes, to educate our children, but to get there we have to get rid of the republicans in congress, and we need someone in Office that works for the People, not the banks, the oil companies, the koch brothers, no more fracking, drilling, ruined streams, we need to help rebuild and be concerned about climate change.. I’m right here in NC not more than 40 miles from SC.. we all suffer the same fates.. I’m supporting and voting for Bernie Sanders.

    • Mary, you aren’t the expert on Citizenship and if you think for one second that Ted Cruz would run for President knowing full well that he legally can’t, then you are even crazier than your words make you sound.
      The “Bernie” is a Communist and he proudly proclaims it ( Communist, socialist, progressive, Democrat, they are all one in the same ) and as anyone that isn’t blind with ignorance knows, Communism does not work. Bernie would be as bad for AmeriKa as OnumbNuts is.
      Sure Clinton should be in Prison. So should her hubby, William Jefferson ( BJ ) Clinton and also Obama, Piglosi, Reid and hundreds of others that took an oath to uphold the Constitution and have not. But I doubt anyone of them will ever see time behind bars. Hitlary maybe, but I wouldn’t hold my breath on it. It all, depends on if the boy king wants her in prison or not. I am sure she has a lot on him just like he has a lot on her, so they need each other to a point.
      Cruz is the only true Conservative that has stood up against his own party time and time again. His record is impeccable. Trump is a lose cannon, a narcissist, a spoiled man with a wife famous for her Porno’s and a daughter that he would love to sleep with.
      We all better hope and pray that Ted Cruz is our next President because only true conservatism will save what is left of the country.

  7. I just heard the proponent of this “not eligible” argument, Dr. Mcmanamon put her best argument forward in a nutshell. The basis for her conclusion on the verbiage of the Constitution is based on English common law.
    So ironically, her argument is itself – foreign born – you must go to English common law, or own that the United States Constitution is obeisant to the Colonists English overlords to make this argument.

    • Well, actually, our Founding Fathers were very well versed in the writings of political philosophers, mostly in England and France. They based the logic of the Constitution on those thinkers.

      Some even say the ideas of some guy from the ancient Middle East had some impact.

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