Commentary

Some Say Ted Cruz Is Not a Natural Born Citizen: George Washington and James Madison Disagree

By Rod D. Martin | February 15, 2016 | 3:32pm EST
Ted Cruz and Donald Trump (AP Photo/Susan Walsh)

Donald Trump has made an issue of Ted Cruz's eligibility to be President since December, suggesting that because he was born in Canada – Cruz's mother is a U.S. citizen and his father is a naturalized U.S. citizen – there is some problem with his citizenship status. 

But there's a clear problem with that suggestion.  George Washington, James Madison and a host of other actual signers of the Constitution disagree.

Those opposing Ted Cruz’s eligibility tend to discuss various English writings and speak of a “patrilineal principle” whereby they claim that children could in fact be natural born British subjects if born overseas, but only if their father (not their mother) was a subject.

Ignoring whether such an obviously sexist principle would pass muster as Constitutional today, the real issue is that the Founders themselves explicitly repudiated this line of reasoning.

What do I mean? Let us look not at some learned tome by Coke or Blackstone but at the Naturalization Act of 1790, an act of the United States Congress, the very first Congress in fact, acting while some states had not yet ratified the Constitution. It states in relevant part:

“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: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States … .” [emphasis added]

Now, once again, this is legislation enacted by the First Congress, during a period in which several states hadn't even ratified the Constitution (much less the Bill of Rights). There had been no time for anyone to "forget" what was commonly meant by "natural born citizen" when this legislation passed.

And that's not even the most significant part. That first Congress included James Madison ("the father of the Constitution"), James Monroe (a future President, one of whose children was later born abroad and whom he presumably had no intention of disenfranchising), Judge William Patterson, Robert Morris, Rufus King, Oliver Ellsworth (one of the Constitution's principle drafters), William Samuel Johnson, Pierce Butler, John Langdon, Roger Sherman, and Elbridge Gerry, all of whom except Monroe were delegates to the Constitutional Convention, and all but a couple of whom signed it.

George Washington, of course, signed the Naturalization Act into law.

Had they changed their minds in the intervening months since Philadelphia? That seems pretty unlikely: there appears to have been no controversy over their definition of "natural born citizen" at the time. Moreover, if they did, many of conservatives' favorite originalist arguments — such as the one concerning the Establishment Clause, whereby we note that the first Congress enacted a measure to print Bibles at public expense for the Northwest Territory — necessarily fail.

The Naturalization Act of 1790, which is actually the only U.S. statute ever to use the term “natural born citizen,” clearly qualifies Ted Cruz as a natural born citizen. 8 USC § 1401, the relevant current statute, doesn’t use the term, but in no way contradicts the 1790 Act.

This tells us with concrete certainty what the Founding Fathers — not a court, not a debating society, not government run amok — believed about the term. There can really be no doubt as to what the Founders thought: they codified it.

I am deeply grateful for the originalist stand of my many conservative friends who've been tripped up by all this. In my many conversations with them, I have yet to meet a single one who realizes that looking to Coke and Blackstone, or discerning the tea leaves of what some pre-Revolutionary British statute might mean, is completely unnecessary. (Unfortunately, I've met more than a few Trump supporters who pretend their position is based on "originalism" but toss it the instant they realize the Founders were clear.)

Ted Cruz is eligible. So too were John McCain, George Romney, Barry Goldwater and yes, Donald Trump (whom Cruz hilariously pointed out would be an anchor baby by his own interpretation). The law couldn't be clearer. But more than that, the Founding Fathers couldn't have been clearer.

So, if "original intent" is something you care about – as opposed to something you merely pretend to care about – Ted Cruz’s eligibility is a slam dunk.

Rod D. Martin, founder and CEO of The Martin Organization, is a technology entrepreneur, futurist, hedge fund manager, and professor. Fox Business News calls him a “tech guru”, Britain’s Guardian has labeled him a “philosopher capitalist”, and Gawker describes him as a “brilliant nonconformist.” He was part of PayPal's pre-IPO startup team and is a member of the Board of Governors of the Council for National Policy.

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