Consider all of the fuss being made because The Donald has raised the question concerning whether or not Ted Cruz is a “natural born citizen” because he wasn’t born on U.S. soil. Yes, his mother was a U.S. citizen; but, she gave birth to her son in Canada.
In this regard, Ann Coulter has done the homework:
The Constitution says: "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."
The phrase "natural born" is a legal term of art that goes back to Calvin's Case, in the British Court of Common Pleas, reported in 1608 by Lord Coke. The question before the court was whether Calvin—a Scot—could own land in England, a right permitted only to English subjects.
The court ruled that because Calvin was born after the king of Scotland had added England to his realm, Calvin was born to the king of both realms and had all the rights of an Englishman.
It was the king on whose soil he was born and to whom he owed his allegiance—not his Scottish blood—that determined his rights.
Not everyone born on the king's soil would be "natural born." Calvin's Case expressly notes that the children of aliens who were not obedient to the king could never be "natural" subjects, despite being "born upon his soil." (Sorry, anchor babies.) However, they still qualified for food stamps, Section 8 housing and Medicaid.
Relying on English common law for the meaning of "natural born," the U.S. Supreme Court has repeatedly held that "the acquisition of citizenship by being born abroad of American parents" was left to Congress "in the exercise of the power conferred by the Constitution to establish a uniform rule of naturalization." (U.S. v. Wong Kim Ark (1898); Rogers v. Bellei (1971); Zivotofsky v. Kerry (2015), Justice Thomas, concurring.)
A child born to American parents outside of U.S. territory may be a citizen the moment he is born—but only by "naturalization," i.e., by laws passed by Congress. If Congress has to write a law to make you a citizen, you're not "natural born."
Because Cruz's citizenship comes from the law, not the Constitution, as late as 1934, he would not have had "any conceivable claim to United States citizenship. For more than a century and a half, no statute was of assistance. Maternal citizenship afforded no benefit" -- as the Supreme Court put it in Rogers v. Bellei (1971).
That would make no sense if Cruz were a "natural born citizen" under the Constitution. But as the Bellei Court said: "Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress." (There's an exception for the children of ambassadors, but Cruz wasn't that.)
So Cruz was born a citizen—under our naturalization laws—but is not a "natural born citizen"—under our Constitution.
The "Great One," Mark Levin, disagrees, offering another reasoned perspective, albeit in his own inimitable way:
Like or detest the politics of The Donald, Ted Cruz, Ann Coulter, or Mark Levin, the simple fact is that the question has not been settled.
The Donald has raised a legitimate constitutional question and is correct for pointing out the perils if it should happen that enemies of the Republican Party sue it (or Ted Cruz) for nominating a candidate who is constitutionally ineligible to hold the office for which he was nominated. Even political liberals should agree with The Donald because, after all, U.S. Supreme Court Associate Justice Stephen Breyer has argued for a very long time that understanding foreign law is critical to the Supreme Court's work.
Politics is politics, but the Constitution is the law of the land. Yes, a declaratory judgment is necessary to avoid the possibility The Donald has raised by asking whether Ted Cruz is qualified to hold the Office of President of the United States.
Let the discussion begin…
To read the sources cited in this post, click on the following links:
* - A "Tip of the Hat" to Robert of Rome for the lead.