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.
In this election cycle, numerous pundits have declared that Cruz is eligible to be president. They rely on a supposed consensus among legal experts.
This notion appears to emanate largely from a recent comment in the Harvard Law Review Forum by former solicitors general Neal Katyal and Paul Clement. In trying to put the question of who is a natural-born citizen to rest, however,
the authors misunderstand, misapply and ignore the relevant law.
First, although Katyal and Clement correctly declare that the Supreme Court has recognized that common law is useful to explain constitutional terms,
they ignore that law. Instead,
they rely on three radical 18th-century British statutes. While it is understandable for a layperson to make such a mistake,
it is unforgivable for two lawyers of such experience to equate the common law with statutory law. The common law was unequivocal: Natural-born subjects had to be born in English territory. The then-new statutes were a revolutionary departure from that law.
Second, the authors appropriately ask the question whether the Constitution includes the common-law definition or the statutory approach. But
they fail to examine any U.S. sources for the answer. Instead, Katyal and Clement refer to the brand-new British statutes as part of a “longstanding tradition” and conclude that the framers followed that law because they “would have been intimately familiar with these statutes.” But when one
reviews all the relevant American writings of the early period, including congressional debates, well-respected treatises and Supreme Court precedent, it becomes clear that the common-law definition was accepted in the United States, not the newfangled British statutory approach.
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, 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.
When discussing the meaning of a constitutional term, it is important to go beyond secondary sources and look to the law itself. And on this issue, the law is clear: The framers of the Constitution required the president of the United States to be born in the United States.