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 . . .
— Article II, Section 1 of the U.S. Constitution
Would swearing in Ted Cruz as president of the United States be a violation of the constitutional mandate that the president be a “natural born citizen?”
The U.S. Supreme Court has not yet defined the meaning of “natural born citizen.” But what if the Supreme Court were to be what Justices Samuel Alito and Clarence Thomas, alongside the late Justice Antonin Scalia, have spent their careers trying to make it? That is, a court that believes judges should interpret the Constitution by discerning the founders’ intentions when they wrote it.
The Republican senator from Texas, who was born in Canada, boasts of being such a “strict constructionist” and has said he would appoint “principled judicial conservatives” if elected. Cruz, as Scalia did, rejects the notion of a “living Constitution,” in which the text and values inherent in the founders’ words are interpreted in the context of modern challenges and conditions. “The Constitution does not change,” Scalia said. “It means today what it meant when it first was written. It does not morph.”
So, what did our founders mean when they used the words “natural born citizen”?
The Constitution requires that to serve as a member of the House of Representatives or the Senate, it was necessary to be a “United States citizen.” The founders did not want to discourage those who were born in other countries from becoming a part of our government so long as they were citizens — natural born or otherwise.
However, according to the notes of James Madison, the delegates feared creating another monarchy. They wanted the president to have undivided loyalty to the United States.
During the convention, John Jay, later to become the first chief justice, wrote to George Washington, urging “a strong check to the admission of Foreigners into the administration of our national Government.”
In Alexander Hamilton’s draft of the Constitution, he wrote, “No person shall be eligible to the office of President of the United States unless he be now a citizen of one of the States or hereafter be born a citizen of the United States.” The convention changed the phrase to refer simply to “natural born citizen.”
If that were not proof enough of the founders’ intent, look to the writing of Madison in the Federalist papers: “It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.”
Lest there be any other meaning attributed to the words “natural born citizen,” one has to look only to the definition given by Swiss legal scholar Emmerich de Vattel in his book, “The Law of Nations.” That book was a constant reference for Benjamin Franklin, who distributed it to the other convention delegates. Vattel’s definition: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”
Cruz would no doubt argue that the intent of the founders was not necessarily to limit the presidency to “natural born citizens.” His case would rest on the Naturalization Act of 1790, which states that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens.” The argument here is that the Congress of 1790 knew what the original intent of the founders was and therefore the 1790 Act, using the term “natural born citizens,” should be interpretated as an expression of the founders.
That argument might have some merit — except that this act was repealed just five years later. Then, the Naturalization Act of 1795 removed the characterization of such children as “natural born,” and noted that, “The children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.” Citizens, yes, but natural born citizens eligible for the presidency? Not according to our Constitution.
Sol Wachtler is former chief judge of the State of New York and an adjunct professor
of constitutional law at Touro Law School.