I’m not a Cruz supporter, but this discussion is getting a bit out of hand.
So let’s start with this:
The entire conversation around the question of who is, or isn’t, a “natural born citizen” takes it for granted that “natural born” means “born on American soil” — and only by extension and to the extent defined by law “born of American parents elsewhere,” because the latter case is otherwise “unnatural.”
But isn’t it the case that the default way of acquiring citizenship throughout history has been based on the citizenship of one’s parent(s)? And that birthright citizenship as practiced in the United States is by the exception, not the rule?
It seems obvious to me that when the founders said the president must be a “natural born citizen” they meant this in distinction to a “naturalized citizen” — hence, anyone who was a citizen upon birth, not needing to go through a special naturalization process, is a “natural born citizen.” And the “birther” argument against Obama was not simply that he was born outside the United States, but that the laws at the time required for automatic citizenship at birth either two American citizen parents, or, if only one, then a minimum length of residence in the United States, which requirement his mother didn’t meet because of her young age.
But now this is coming up again with respect to Ted Cruz, with a pair of opinion pieces in the Washington Post (as I use up my allotment of WaPo articles pretty quickly this month).
The first, “Yes, Ted Cruz is a ‘natural born citizen’“, by Johnathan H. Adler, appeared on January 7th as a part of the Volokh Conspiracy blog hosted there. He states simply,
Under U.S. law, the fact that Cruz was born to a U.S. citizen mother makes him a citizen from birth. In other words, he is a “natural born citizen” (as opposed to a naturalized citizen) and is constitutionally eligible.
and he sites a further expert source who says
All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.
The second of these, “Ted Cruz is not eligible to be president,” by Mary Brigid McManamon, claims just the opposite. She cites various bits of common law, the particulars of which I’m not equipped to judge, except that her arguments seem to be a stretch, and they’ve been refuted elsewhere, so I’m not going to do so here.
But I will point to one bit of nonsense at the top of her article:
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.
No, no, and no.
Naturalization is a process — it requires some sort of action on the part of or on behalf of an individual. When my son was born, sure, we had to apply for a Consular Record of Birth. But that did not “make him a citizen” — all it did was provide documentation of the fact that he was already a citizen.
There was nothing “unnatural” about his citizenship, no way in which Congress, as an exception to a general rule, had to enable at-birth citizenship for those born outside the country. Instead, doesn’t it make more sense to consider the laws defining the circumstances in which children are or aren’t automatic citizens, as a means of limiting what would otherwise be the general rule of automatic citizenship, to prevent citizenship from being passed down for generations?
In fact, given that birthright citizenship had to be defined by the 14th amendment, it seems to me far more likely to think of citizenship inherited from one’s parents as “natural” and citizenship by location of birth as the unnatural category.
And, looked at in this manner, it simply makes no sense at all to even entertain the idea that Cruz is not a “natural born citizen.”
To close, an anecdote:
As longtime readers will know, when my boys were preschoolers, we spent two years in Germany, officially as “expats” even though we lived an hour’s drive from my husband’s hometown. Up to this point, the boys simply had U.S. passports, and, while we made sure to get my long-term residency/work permit in order, we didn’t do anything with the boys.
Now, in Germany, when one moves into a new town, it’s not enough to get the utilities changed over and maybe register a forwarding address with your old post office. It’s also required that one register at city hall, providing the names of all the household residents, as well as various other details, among them citizenship. So, shortly after move-in, my husband went in to do so, filling out: Dad: German; Mom: American; Kid 1: American; Kid 2; American. (We had only the two kids at the time.)
And the clerk, examining the paper and clarifying the situation — that Dad was a German citizen — simply X’d out the “American” for the kids and wrote in “German.” No questioning of “did you fill out X paperwork?” — it was, and is, simply a given that the fact of his German citizenship, not the submission of any form, makes our kids German citizens. And this transmission of citizenship from parent to child is, I would say, more natural, more of a true “birthright” citizenship then our 14th Amendment situation conferring citizenship due to the fact of being born on American soil.
UPDATE: Here’s a very detailed post on the matter from Legal Insurrection. To be honest, I’ve only skimmed, so I’m adding this link both for readers and for my own ability to come back to this later.
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